THINGS A COURT WILL CONSIDER WHEN AWARDING CUSTODY

If all of the above things I have talked about fail and you must go to court you had better know in advanced what is expected of the parent who gets custody. Each state has a set of guide lines that a judge must consider when deciding what is in the best interest of a child. The guidelines all follow the same general pattern. The following is a typical example of what a state requires a judge to consider. All of these things must be considered but the judge is always given considerable leeway when making a decision. Because of this what follows is in no particular order of importance.

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this State in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

(k) Domestic violence, regardless of whether the violence was directed against, or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

What all this means is that a judge is suppose to look at each one these things and decide which of you has the most factors in their favor. The one with the most factors in their is awarded custody. That's the way it is suppose to work in theory but, theory and reality don't always match so I'll take each factor and say something about it. Some of the factors I'll talk a lot about and some I won't. This doesn't mean they are not important. All it means is that I think they are self explanatory and its easier for you to put your own interpretation to it than spent a lot of time listening to what I have to say about it. Just remember all the factors are important and anything you can do on any factor to make yourself look better than your Ex will help your case.

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

This means not only your child's relationship with you and your Ex, but also your child's relationship with the rest of your family and your Ex's family. A judge will look at how giving custody to either one of you will affect relationships which are important to your child. Is your child going to have to give up a relationship that is important to them?

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

Do you tell your child you love them? How often do you tell your child you love them? A judge will look at whether or not a child feels loved. This doesn't mean trying to buy or child's love or never saying no to your child. This means letting your child you know beyond a shadow of a doubt that they are loved. One of the best ways to do this is listen to what your child has to say. What they are be saying may not seem import to you but I guarantee you it is important to them. Let them know that are willing to listen to what they have to say and what they like and dislike is important to you.

Another thing that is important to children is to be disciplined. Not in a harsh way but in way that lets them know you care about them and what they are like are going to be like when they grow up. This is not a book on how to raise children so I not going to say anymore the subject. Just be aware that a judge will look at how loved a child feels. Other factors may outweigh this but a judge will certainly look at it.

How will can you provide for the basic needs of your child? To you have a good enough job to put food on the table without relying on food stamps or welfare. This doesn't mean that if are able to provide for your child better than your Ex you will get custody. All it means is that the judge will look into how well each of you can provide. If everything else is equal it may tip the scales in your favor. Or then again it may not.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

If you presently have custody keep a stable job, a clean house and stay involved with your child activities. Keep in touch with teachers, coaches and others who see your child on a regular bases. Make and keep doctors and dentist visits. Ensure that all immunization shots and check-ups are current so that you can later prove that you can adequately care for your child. Give your neighbors the impression that you and the child live a nice quite life and that all is well. Never let your child ride with an impaired driver and never leave them alone in the house if they are not old enough. Coming in late and having parties at your house gives the neighbors the impression that you are not settled down and if questioned by social services or if you ex uses them as her witness then your case can be seriously damaged. Criminal activities are strictly forbidden and even a current DUI probably will ruin your chances of keeping custody.

If you don't currently have custody then you should still routinely talk with your child teachers, coaches and others so that you can demonstrate you take an active roll in your child's life. That you care about what is happening in your child's life. Call or visit with the doctors and dentists. You may be able to show to the court that the other parent does not adequately care for the child. Keep the house clean and hold down a steady job. Avoid lots of people coming in and out of your house and keep good relations with your neighbors.

What constitutes adequate living conditions: Ask the local social services department for this information. Be careful they may question you on the situation and may try to get involved if they feel that a child is in danger, remember they must follow up on an suspected child abuse case. Think carefully before you get them involved and be ready to demonstrate a clean caring environment when you do. In my case I had to let them know that I was there for this information and was intent on getting it. At first they told me that there was no standard for adequate living condition for a child. My response was "you mean to tell me that I can have my child using the bathroom outside in the winter and drinking filthy river water and that none could do anything about it" That is when they decided to furnish with some guidelines. If you think that this information can help you ask the social services representative in your area .

One of the major reasons I won custody of my son was the judged ruled there was " a substantial change in circumstances justifying the modification of child custody in that the Respondent has failed to provide an adequate environment for the parties minor child". If you do not have a descent home with all utilities get one even if it means moving in with your parents. However remember that whoever you live with their life style can be questioned in court the question may be asked why did you subject your child to this environment an answer of I had not choice won't help you!

Poverty does not mean that a parent can not provide adequate care remember that many people live below the poverty line and maintain custody of their children. Many of these people provide a loving stable environment for their children. So poverty alone is not a reason to relinquish custody.

You don't have a separate bedroom for each child but it most extremely import that boys and girls do not share the same bedroom.

(e) The permanence as a family unit, of the existing or proposed custodial home or homes.

They judge will look at things like have you gotten remarried. If you have, what are the chances you will stay married. Are you living with someone? If so what is the likelihood of that relationship lasting?

(f) The moral fitness of the parties involved.

The moral fitness issue plays often plays a very large part in child custody cases. This doesn't mean that one parent or the other is a bad person or that they are immoral it just means that if the court considers all the factors listed and both parents are about equal the court may vry will determine that one of you may be slightly better at teaching your child to be a good citizen. That person will probably be awarded custody. You don't have to prove your ex is a bad person or immoral. What you have to prove is that you are a better person. I've listed several areas dealing with moral fitness you might want to think about. I'm going to start with the subject of is your ex really unfit to raise your child. I know of a lot of people who because the yare caught up in the hurt and emotions automatically decide their ex is a terrible person and try to focus on that in court. This is usually a mistake. Remember you don't have to prove how bad your ex is you have to prove how good you are.

Just because you think your ex is unfit doesn't mean she is. take a long hard look at the facts of your situation and make a realistic evaluation of what is in the best interest of your child. This is what the court is going to do. You may believe that your ex is living immorally. You may think that she is not, or can not provide for your children in a manner in which is acceptable. The court will not take your opinions into consideration. What the court will look at is the stability of the living environment, are the child's educational needs being fulfilled, does the child feel loved and protected, and above all, is their any physical danger to the child. Courts usually don't make moral judgements or make decisions based on social or economic facts. But there is something called the moral fitness issue which I'll talk latter.

I know of one case where the mother received custody of the children. She was trying to support three children on a minimum wage job. When she began dating, the father believed she was behaving immorally and kidnaped the children. He took them to his parents in another state. The court saw the matter as a plain and simple case of kidnaping and would not even consider the fathers reason for taking his children. He found himself in legal trouble and ended up not even being involved in his children's lives. Unless of course it was a life saving effort or something of that magnitude. Don't even consider trying to take your child.

As I started out by saying in court a very big factor for the judge in deciding who gets custody of the child is the moral fitness issue. In every state the judge takes a long hard look at the the relative "morality" of both parents, and you'd better be aware of this. The best thing you can do is live your life in such a way that your "moral fitness" to be a parent can't be challenged in any realistic way. Discuss good and bad morals with your child? Make sure your child clear on the fact that some things are required (honesty, respect for elders and authority figures etc.) and some things just plain forbidden.

Moving on to other considerations in the moral fitness factor more cases are lost over drugs and alcohol than all the other factors but one. Abuse and domestic violence If you do illegal drugs, you are going to lose on the moral fitness factor. If you leave the children home while you cruise the bars you're going to lose on this factor. If you do want a night out have your children stay with your Ex on that night.

If your ex has a problem with substance abuse this should be brought to the attention of your lawyer as soon as possible. You or your lawyer should then seek court records and if your ex has recently been convicted, link the behavior to the well being of the child. In my opinion a DWI convection could sway the judge to the conclusion that their child could be placed in physical harm if custody is not yours. It's difficult to prove this if the person has not been convected or if the problem has not progressed to the point where it is affecting your ex's ability to provide for the children or hold a job. There are a lot of alcoholics in this country that are able to hold a job and function in society. Hopefully if your ex has a drug or alcohol problem the they will be arrested before any harm is done to the child or themselves. Also if your ex is a smoker inform your lawyer that you want this brought up in court. In today's society more and more concern is placed on second hand smoke and this may help sway the judge. Remember the stronger your case the better chance you have and that every little advantage helps. Also, be prepared the other parent may bring this up if your are the smoker and therefore gain a little greater advantage. Remember you're not trying to prove your ex is bad only that you are better.

Many times someone with a drug or alcohol problem will drive impaired with a child in the vehicle. If you can prove that this happens, (as when they are arrested for the violation) first make an entry in your logbook (I'll talk a lot more about logbooks later on) then inform your lawyer and see if she can ask the court to relinquish temporary custody to you I feel that it is best to go to court already having custody for two reasons. The first being that you can care for the child and the second being that you are willing to take responsibility for your child. Also I feel that the judge has the first impression that you are the provider for the child. Other times the your ex may leave the child with someone who is impaired. Weather she ran to the store or if she is asleep does not matter she is demonstrating that she is not providing adequately for the child. If there is not at least one sober person to give care to the children in the house then a parent is not providing adequate care for the children. If you can prove this then you have probably improved your odds of winning your case. If you know there is not a sober person in the house contact the police and explain you are concerned about the safety of your child. Contact your lawyer as soon as possible afterward.

During the time that I was waiting for my child custody case to be heard i had the unexpected need to transport my kids out of town approximately 150 miles away. the notification came as I was preparing for Monday night football. After already having a couple of beers we left the house and soon came upon a DWI checkpoint where I was pulled to the side questioned and given a sobriety test which luckily I passed this could have killed any chance I had of taking my kids out of the terrible situation they were in. Never make this mistake if you have had any substance stay safe at home you will be glad you did. In my opinion just one mistake like this will be critical to your efforts and will haunt you at the trial and could end up being the reason why you are paying child support to someone who is qualified to raise your child then you are. However if the other parent makes this mistake take full advantage of it (have your lawyer request temporary custody for you) remember your lawyer is simply your voice to the system(and will probably not act on his or her own with out your encouragement, even though a good one in my opinion should keep abreast of things and guide you to the appropriate actions)if you can pull this off it may demonstrate at your hearing that you are aware of the unfit environment your children are in and that you are taking an active roll in changing this.

In court the person who knows you the best will be facing you in a no- holds barred battle and if you did drugs that fact may be brought up. Be clean and if the subject comes up in court have your attorney request a drug screen of all parties involved you should have nothing to lose and maybe something to gain. Again this is far to important to not be drug free. If you suspect that anyone in the other party may test positive for drugs have your attorney bring up the subject and call for a drug screen of all parties. This subject may not be deemed applicable to the judge unless you can demonstrate a basis of concern and can reasonably demonstrate that the child could be placed in jeopardy by this activity.

It should go without saying that criminal activities will greatly lessen your chances of winning custody, but it is important enough to mention. By all means stay out of trouble with the law. You may think that just because you're not a bank robber or a serial killer you've this covered. That may not be the case, however. Here are some other things to think about. Tax evasion, shoplifting, and even speeding. A single drunken driving convection is probably going to put an end to your hope of winning a child custody case. Because after convection you are perceived as an alcoholic and single alcoholic parents are not the most desirable parents. After convection it would probably take years to lose the stigma that you could not be the best choice for raising your child. Drugs on the other hand are similar only much worse. If you go to jail for a period of time the your ex could easily obtain sole custody and you will have a very difficult time gaining visitation much less custody.

When I went through my custody case I made it a point to read the newspaper everyday even though I resented our cheesy little overpriced newspaper. Knowing my ex and her new husband I figured that before the custody hearing one of them would be charged for something. Unfortunately this did not happen but it was worth a shot. My elderly neighbor would also keep me informed on any thing that she heard on her police scanner. I appreciated her efforts and often told her so because you never know what little piece of information may give you a edge and I believe every little bit helps.

The subject of girlfriends or boyfriends is a touchy subject but I'm going to give you my opinion. I'm looking at from the point of view that every little thing you can do to prove you are better person than your ex helps. It would not be in your best interest to let them move in with you or you move in with them until after the hearing. It would also not be a good idea if they stayed overnight when your child was at home. What you are trying to avoid is the appearance that you are going to have an endless stream of people coming into your child's life for a short period of time and then leaving. Children need stability.

Another thing you can do to improve your chances of winning the moral fitness factor is to vote in every election, and see that your child knows that you do. Be sure and talk to your child about why you vote. Tell them things like it's a responsibility to the people of your community and the nation that you have. Tell them that its an obligation you have and that you live up to your obligations. Also tell them that you are not voting just for the sake of voting. Try to determine who you think really is the best person and then vote for that person. It doesn't matter whether or not you think voting really does any good or not or whether or not you can make a difference. What your after is proving that you are responsible person and that you take your responsibilities seriously.

Volunteer and do charity work is another way to gain a little on the moral fitness issue. Find something or some cause you like and do volunteer work. Then discuss what you are doing with your child. Teach them things like we all have responsibilities to others, to our neighborhoods and neighbors. You'll be surprised when you do things for other people it will take your mind off your problems. It will also make you feel better about yourself.

(g) The mental and physical health of the parties involved.

What kind of health are you in? If you are in fairly good health you may want to start exercising and eating right to stay that way. This is not to say that if you are in poor health you won't get custody. It's just one of the factors a judge is required to look at.

(h) The home, school, and community record of the child.

How is your child Doing in school? Does your child participate in extra curricular activities. Who is your child likely to do better in school with. You or your Ex?

(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

This doesn't need an explanation so I'm not going to spend any time talking about it other than to say do not try to turn your child against your Ex.

(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

Simply put this means if you had custody would allow your child to spend as much time as they wanted to with your Ex.? Would you constantly being saying negative thins about your Ex in front of child.

(k) Domestic violence, regardless of whether the violence was directed against, or witnessed by the child.

This is a very big issue these days. If you have been involved in domestic violence in the past the only advice I can give you is to seek counseling. May not feel like you need it or you truly may not need it but it will look good to the judge.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

This is a catch all that basically says judges can do whatever they want to. No matter how all the other factors play out. This is where a good lawyer who knows the court system and the judges can be the deciding factor. It may not be fair but if your lawyer has a good working relationship with the judge your chances of winning go up.

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