How Custody Gets Decided

Although the whole issue of custody and father’s rights is rather complicated, the principle which determines to whom a judge awards custody in a custody dispute is actually rather simple: it’s a legal standard called best interests of the children.

And, believe me, if you start legally mixing it up with mom, you are going to hear this opening phrase quite a bit : “it’s in the best interest of the child that ________.” Ha ha. Believe me… Now, to summarize how custody gets decided, let’s look at a judge’s quotations from many years ago (which still holds true):

“The fact finder (judge) is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future. At the bottom line, what is in the child’s best interests equals the fact finder’s best guess.”

The other difficulty in stating definitively how custody gets decided is because judges are, obviously, individuals, and, people are different. Each person brings his or her own unique history and innate eccentricities along, and, that makes a predictable standard impossible to determine. Perhaps the judge’s mother left in his childhood and his father worked very hard to raise him. Well, put your hands together and pray that you get such a judge!

To understand the custody-decision-process, it’s also crucial to look at history a bit. You see, children were once considered to be the property of their parents. We don’t quite see it this way anymore, but, it wasn’t too long ago that this was the case. It was a father’s right to have complete control over his children.

This pattern changed, naturally, during the Industrial Revolution, because, men left the home for factory work, and, the women remained to raise the children.

That’s how the tender-years doctrine came to be. According to the tender-years doctrine, custody of children, especially those younger than eight years, nearly always went to the mother, premised upon the belief that mothers had an innately unusual bond with their little ones. For a man to win custody during this historical period, he had to prove that mom was unfit: that she abused, neglected the children, etc.

Of course, times have changed, and, many women have careers outside the home. In addition, many families are comprised of two working parents. In addition, a lot of men are even primary caregivers of the children!

And, we now even have research that shows that men are just as good with young children as women.

The court system is aware of these changes, and, technically speaking, the tender-years doctrine is no longer the guiding principle in custody cases. Ideally (with an emphasis on the term ideally) mom doesn’t have a de facto advantage in a custody dispute. The guiding principle, as indicated, is best interest of the child. According to the best interests doctrine, age and sex of the children are variables which the court weights; however there are other considerations which the court uses to decide who gets custody.

These other custody considerations vary slightly from state to state; but, for the most part, in any state, these are the points the court examines in determining who gets custody:

ADDITIONAL CUSTODY DECISION POINTS

Parental Rights

Continuity

custody status quo

Children’s Preference

Other Factors

anything else which the court deems important

Joint Custody Presmuptions

Okay, let’s take a look at how presumtions is defined: A conclusion derived from a particular set of facts based on law, rather than probable reasoning. What this really means in plain English is a really good thing for dads: you see, the court is compelled to conclude that joint custody is in the child’s best interest, unless the other parent proves it is not.

Now, not all states follow these joint custody presumptions. And, the presumption is voided by cases where domestic violence exists, which, of course, makes perfect sense.

Another important point to note is that custody presumptions vary a bit from state to state.

In cases concerning custody and visitation, in addition to the factors outlined above, a judge (or either parent) may request a custody evaluation.

Comments

Comment from melissa vernon
Time: March 5, 2008, 6:30 pm

I just wanted to ask a question…hopefully someone who has gone through this can help me out. My husband and I just went through a custody battle with his ex over their son. Needless to say the outcome wasn’t exactly what we wanted but for the sake of my step-son we settled in court on 5days and 4 nights every other weekend. My step-son will be turning 12 yrs old this mon and has asked his father and I if he can live with us full-time. Is there a posiblity that a judge will change an agreement based only on what the child wants? We are also conserned about how he is being treated at his mother’s home based on stories that our child has told us. There has not been anything proven as far as abuse is concerned but it sounds like he is being emotionally neglected. I would love to pursue another court hearing but I’m afraid we wouldn’t stand a chance. Oregon is not the greatest state when it comes to the fairness of the father. If anyone has experienced something similar please contact me…I’m looking for some advise before I have to pay our attorney for theirs.

Thank you
Melissa

Comment from papa
Time: March 5, 2008, 10:56 pm

Dear Melissa,

thanks for leaving your comment (question). I found a very cool site for getting some input on these type of questions. It’s a forum for posting questions and answers about custody issues.

Click here to check it out.

Comment from amber r valenzuela
Time: April 6, 2008, 4:30 am

My husband had a child at 16, he pays child support and has since the beginning. The mother up and disappeared with the child when the baby was 2. My husband hasnt seen her since, MO says they wont give him any information on them. The mother could be a crack ho for all we know. We live in WA and my husband just got out of the navy. Now we are being told that since the lil girl is about 10 now her wants are going to be taken into major consideration….with that said… my husband is wondering if its just going to hurt his daughter if he tries to figure a way to get into her life now. And we’vebeen told that trying to get any kind of custody will involve traveling to MO with our 3 small girls and hiring a lawyer which we certainly cant afford especially since we’re paying 500 a month C/S.

Comment from Thomas
Time: April 8, 2008, 6:50 pm

I am currently going through a custody battle with my ex-wfie. Currently we have an agreement in place for 50/50 custody, and we are both in the military. She is about to get out of the military on a medical, and move to the backwoods of North Carolina to live with her brother for a while. She has no job lined up (I am staying in the military), no education at all (where I have a college degree), and no where to live (I am staying in California), she also committed adultry while I was deployed living our son with friends and babysitters so she could sleep around. This continued after we seperated, and throughout the first three years of our son’s life I drove him to and from daycare, and took care of him while she would go out and party. My ex keeps telling me that she is the mother and adultry does not play a factor, my lawyer keeps telling me though that a judge is not going to let her take him out of state, and that adultry plays a role at to her character in the judges eyes. Who do I believe? My ex is offering for me to pay very little child support which I am offering her the same, but has said that I will pay her what ever the judge tells me to, I don’t know if this is just a scare tactic to have me give up.

Comment from papa
Time: April 8, 2008, 9:19 pm

Thomas, you can never really give too much info when telling somebody your story about your kids/custody etc. Based upon what you said, it seems, imho, unlikely that a Judge is going to allow her to take the child out of state. Judges tend to be hesitant to allow out of state moves, and, it has to really be shown that it’s child’s best interest and there has to be a plan in place to keep continuity with the noncustodial parent… but, you really didn’t provide all that much information and these things seem to get complicated……..

but, the real question for me is what’s going on that you don’t trust your lawyer… don’t get me wrong… lawyers shouldn’t be trusted… they tend to be greedy scum… but, it’s a very bad sign that you don’t trust your lawyer ……. what’s going down with that

Comment from papa
Time: April 10, 2008, 12:25 am

Amber,

you said:
my husband is wondering if its just going to hurt his daughter if he tries to figure a way to get into her life now.
—————————————————-

No, it will only help his daughter. A dad is the most important person in the daughter’s life… absolutely… he should find a way to be a part of her life… I’m sure she needs him!

This is a good forum that can help you. And, you can get questions answered by a legal expert for a small fee.

Comment from Concerned Father of 3
Time: May 4, 2008, 12:47 pm

My wife has Multiple Personality Disorder, and several hormonal problems such as severe premenstrual dysphorric disorder among others, diagnosed by medical professionals. She repeatedly had serious breakdowns that scarred her family, especially the 3 children. I supported her for years, but at the last she would only go to get help at my ultimatum of divorce. I told her right before she left we all needed counseling as a family, and couples counseling, and she needed to please stay in counseling or I would have to divorce her since she showed a track record of going for a short time, even taking meds as prescribed for a few months, long enough to fool me or her doctor, but then she would stop going to appointments and eventually stop taking the meds and wind up having yet another breakdown. She has had several suicide attempts over the years, and even been picked up by the police for wandering the streets at night. She would take off and abandon the kids when she felt overwhelmed. She did this once while I was away at work and my brother in law came by to drop off something and found the two older girls in their room penned in with a baby gate, and my son in a stroller unattended out in the front yard, and my wife was up on the roof! At the last I would come home and find the house a disaster, and the kids would beg me to take them to mcdonalds because mommy had not fed them all day long! Maybe I was naive, or should have acted sooner. She took off with the kids from the state of Tennessee to Wyoming on March 31st leaving a vague note stating she was on a “vacation” and that maybe someday I might see my kids. I since found out a great deal about her whereabouts, but her mother is a youth services attorney in Wyoming, and she knows her past psychological history, and has been nagging her to leave me from even before we were married. I have a bad feeling all of this was planned out after gathering any info I could find. I have some phone reords that indicate her and her mother had been talking for about a month or more for hours on end leading up to this. Her mother apparently finally won. The saddest part is these kids deserved none of this and have not seen or even spoken to their daddy on the phone this entire time, and her family refuses to talk to me, and uses excuses about my religious choices, and flase claims of me being controlling and ridiculous stuff I will inform you later more about. I have not seen or heard from her or my kids for 35 days, and I found the statute for divorce for residency in Wyoming is 60 days. Me and Nichole were married for over 10 years and the 3 children were born in Tennessee and have lived her for their entire lives. When she left I got dropped off of tenncare and I am diabetic and have glandular problems, these two things are very serious and even life threatening. I need to make a decision, but I need legal help to make sure it is the best decision. I have saved up some money since then, despite her efforts to make off with all of my 2000 in savings… Please contact me ASAP as time is runing out! Thanks! FYI I have not filed any divorce or custody yet, I was trying to be patient since I knew her family was helping her, but since then I have found out her family is about 100 or more miles away, so she is the primary care provider for those kids, and she is NOT capable of doing so. Help these kids, please!

Comment from Sara
Time: May 15, 2008, 12:59 am

If your husband has not been inthe childs life, why now? Was it his choice not to be in her life? If it was he should stay away. I am sure she is fine and doing well. My ex-boyfriend does not want to be in our childs life. I have offered him several options. I send the child to an excellent daycare of which I asked him to pay half, I also aked him to pay half of her health insurance his response was that he could not afford it. I pay everything and will not put her in a lesser educational system cuz he can’t afford it. He lives at home with his mom an does not pay rent or anything else. He has no legal rights cuz I did not place his name on the birth certificate. Nor is he willing to fight to have his name put on there. My child will have the best I can give her I am sure she will mis her father but she will be well taken care of financially and emotionally. If in the future he decides to play daddy it would be an inturruption and upsetting for her expecially if there is another man in her life being the father figure and taking good care of her.

Comment from Emili
Time: May 20, 2008, 3:49 pm

My brother is going through a divorce and custody hearing. He has 3 children. One of his children is a 6yr old boy. His mother has decided that he is a girl stuck in a boys body. She dresses him in girls clothes and paints his nails when he is with her. She talks to him about changing his gender at a later date. My brother has no problem if his child was to be gay, but he shows no signs or instict other than what his mother is pushing on him. She has decided she wants full custody because she thinks it is quite fine that he dresses as a girls and wants my brother to conforms to her way of thinking. He does has an appt to have a full physical and emotional evaluation done on him in a few weeks. The problem now is they have a temporary custody hearing coming up and she is bringing in some trans-gender psychologists on her behalf. We are having a hard time finding anyone who wants to even put their reputation on the line to address this issue (Oregon). He is worried about his sons physical and emotional wellbeing. Right now his ex wants to have the kids for a week and then he can have them for a week until the real court date. My brother is so very worried about leaving the kids with her for a week with no contact and what she may decide to do next. He does have an attorney and he did suggest going with the 7 day on and 7 days off until the court date so he looks like he is being the good guy and trying to work with her. She has also moved her boyfriend in with her she met off the internet.

Comment from papa
Time: May 20, 2008, 5:15 pm

oh, Emili … you’re not bullshitting me… are you? Oh, what a disturbing, disturbing thing to read! If I were in your brother’s shoes, I wouldn’t be able to wait to get this whole thing before a Judge…

… now, believe me.. I know a lot of dads + kids get screwed over in family court… believe me… I know that.. I’ve lived it!

but… the number one factor for determining custody is the best interest of the child! I don’t understand the attorney’s strategy about your brother wanting to look like a good guy!

Now, I AM NOT A LAWYER, so, take that into account… because, what I say is “Fuck trying to look like a good guy!” If you can’t make a best interest argument based upon the mother trying to turn a 6 year old boy into a girl … .then… I DON’T KNOW WHO WOULD BE ABLE TO MAKE A BEST INTEREST ARGUMENT….

in other words, take the whole damn mess before a Judge and make a simple best interest argument … argue for a psychological examination of the mother …….

listen, you’ve got material to work with here… DO NOT BLOW IT! I’d kill to have something like this to work with in court ………

here’s a service you should use …….. it’s a great way to get a lawyer’s opinion on a question for cheap:

http://www.princedaddy.com/family-law-questions-answered-for-a-fee/

Do the research …….. think carefully and hard!!!!!!!!! Do not let this opportunity slip away from you

stop back and update

good luck
papa d

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