One of the most sensitive issues in a divorce case is the question of who will be the primary caretaker of the children, if any are involved. Oftentimes, parents reach agreements about their custodial arrangements outside of court; indeed, only about 5% leave it up to a judge to decide. The motivation here may be a desire to keep children out of a potentially painful tug-of-war battle.
Child custody laws have swung back and forth over the last few centuries. Up to the mid-1800’s, courts had a distinct bias in favor of fathers (who often retained property after divorcing, as well). From there, most states swung to an equally strong preference for mothers; this lasted up until the 1960’s or 1980’s, depending upon the state. Nowadays, the sex of parents is not supposed to be a significant factor in determining their eligibility to care for their children. Mothers and fathers have an equal right to custody.
Nonetheless, some judges can be swayed by personal biases. This can take many forms. Mothers can be seen as more fit to nurture to girls, while fathers might be considered better role models for boys. An attorney familiar with family law cases might be able to tell clients about which judges are swayed by personal biases and which are not.
If parents are indeed given equal consideration regardless of their sex, there are other factors that are weighed in cases where child custody is disputed. If neither have serious problems (such as drug addiction or mental illness), the courts will often consider who has been a child’s primary caretaker on a day-to-day basis up to that point. This factor is particularly stressed with young children (under the age of eight). Children can also have a say if, for example, they clearly exhibit a stronger emotional bond with one parent over another. If their answers to questions aren’t vague, and don’t seem to have been coached by one parent or another, they may be considered. Judges seldom weigh the feelings of children under the age of seven, however, deeming them too young to make such momentous decisions.
Judges typically talk to children in private, with neither parent present (though their attorneys may be). In some cases, a judge may appoint a psychiatrist, psychologist, or social worker to talk to the child and then report to the court.
Parents’ work schedules are usually not a significant factor in custody, unless one parent is clearly able to spend much more quality time with the child than the other. Other factors of a divorce, such as extramarital affairs or homosexual relations, seldom carry over into a child custody case unless such conduct is deemed to have placed the child in a stressful situation.
Regardless of how custody is decided, the non-custodial parent will almost always have visitation rights. Parents can also have a joint custody arrangement, whereby they each spend significant amounts of time with the children and share in the related expenses fairly equally.