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In any divorce case with minor children, the single most paramount issue of most clients is that of custody. There are two types of custody. There is physical custody which involves awarding one parent day-to-day physical control of the minor child. The other type of custody is legal custody which deals with the issue of allowing parents to share decision making authority on important decisions affecting the child's welfare.
Most custody cases involve a determination by the Court as to which Party, or both Parties, should have physical custody of the minor child. In determining who should have custody, the Court must consider the "Best Interests of the Minor Child" standard.
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There are a number of factors the Court has to consider and must make findings on the record when the Court is determining which parent should get custody. These factors do not need to have equal weight, however the Court has to determine the weight given to each factor.
Those factors are:
a. The love, affection and other emotional ties existing between the Parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child.
b. The capacity and disposition of the Parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any. This factor tries to project the parent's ability to foster an emotional bond in the future, and the parent's impact on such matters as education, guidance and religious training.
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.
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e. The permanence, as a family unit, of the existing or proposed custodial home or homes. This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
f. The moral fitness of the Parties involved. This factor evaluates the Parties' moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
g. The mental and physical health of the Parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
h. The home, school and community record of the child.
i. The reasonable preference of the child, if the Court considers the child to be of sufficient age to express preference. The Court must take the preference of the child into account if it decides that the child is old enough to express a preference. The Court is not required to disclose the child's preference. The child's preference does not automatically outweigh other factors; it is only one element used to make the determination.
j. The willingness and ability of each of the Parties to facility and encourage a close and continuing parent-child relationship between the child and the other parent or the child and parents.
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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. The Court may not consider the race of a parent's spouse in considering whether to change custody.
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Law Offices of Brandt & Dehncke
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P.O. Box 128
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