Child Custody Determinations

Child custody is the most frequently contested matter in any divorce or child custody proceeding. This is because the focus of most individuals is on their children, rather than their property, as it should be.

In the simplest terms the residential parent of a child is going to most likely be the person who has spent the majority of the time with the child and cared for their primary needs. Absent showings of neglect, abuse, criminal behavior, illegal drug or alcohol use, domestic violence, or a variety of other negative conduct; the parent who has been the caregiver for the child will likely be the one who should continue in that role. Modern society has broken away from the typical mold of the stay-at-home caregiver and the bread-winner, but most families often have one parent who provides more attention and time with the children than the other.

The characterization of who has been the caregiver for the children becomes important because the courts are, first and foremost safety conscious, but secondly “judicially lazy”. We will deal with the issue of the courts tendency to be safety conscious later. The courts tendency to be “judicially lazy” means a couple things. First; the courts have a tendency to rely upon the status quo of the parties. If the court is faced with a choice between a party who has stayed at home and cared for the children’s needs and a parent who has left the home to provide for the family’s needs the court will most likely feel they are merely recognizing the parties own decisions in regards to who is best fit to carry on the role as the residential custodian of their children. Secondly; the courts tendencies towards “judicial laziness” also relates to their willingness to accept the status quo as laid down by others the court believes are trustworthy advocates for the children. For example, the commissioner relying upon witness statements from individuals who provide declarations under oath as to the conduct of the parties; the reliance of the Judge upon the decision of the court commissioner’s in their dealings with the parties; the reliance of both the commissioners and the judges upon reports of any assigned Guardian Ad Litem (GAL).

In short, the trier-of-fact, whether they are commissioners who are dealing with temporary orders or the judge at trial, have a difficult job to do and they cannot be faulted for relying upon the history of the parties and other trusted sources when making their considerations regarding custody. Understanding these tendencies and focusing your issues accordingly become an important part of your ability to persuade the court who should be the residential parent of the children. Lawyers don’t have the ability to turn back the hands of time, but what we can do is make certain the courts are aware of our client’s dedication to their children, and their needs, both in the past and the future.

The safety consciousness of the courts is a natural result of the court’s job as an impartial and fair advocate for the best interests of the children. When the courts are faced with a situation where there are claims children are at risk of harm, they have a tendency to lean towards safety for the children. The level of the safety consciousness of the individual trier-of-fact varies greatly. An argument of harm to the children may not be sufficient in one court, but may be in another. This creates a great deal of inconsistency within the legal system and many instances where protections are granted when they should not have been or visa-versa when they should have been granted and were not. All things being equal; the trier-of-fact will tend towards a ruling that will protect the children. This becomes important because this tendency towards safety for the children can allow the status quo of the parties to change, or become cemented. When this occurs the court’s tendency to adopt the status quo can result in rulings that may be the result of the court’s safety consciousness and not the conduct of the parties themselves. This problem is compounded by the problem that it can take a year or more between the initial custody determination and the trial in front of the judge.

For example, if a party makes a claim against the recognized caregiver of the children which is adopted by the court, but only later found out to be false, the amount of time that went by since the initial determination, and later discovery of its inaccuracy, may have changed the status quo of the parties. In this example; could the judge be faulted for relying upon the “new” status quo of the parties rather than what existed naturally prior to the false allegations? Possibly; but knowing and understanding these tendencies may be critical to properly prepare, and present, your interests before the court.

The Guardian Ad Litem (GAL):

A GAL is a court appointed advocate for the child. The GAL becomes a party to the case and can act independently to file motions related to the welfare of the child. However, such motions are the exception rather than the rule though. Most GALs limit themselves to an investigation of the issues relating to the welfare of the children and writing their report to explain to the court the course their investigation took and their subsequent recommendations regarding custody.

The GAL report can have a critical impact upon the how the court will determine custody. The court’s impression of GALs are that they are experienced, knowledgeable, unbiased, diligent investigators who only act in the best interest of the children. Most often this is true, but there are a multitude of reasons why a GAL may not conduct a proper evaluation of the situation. To a certain extent this can’t be controlled as most often the courts appoint a GAL and the ability to select a specific person are limited, but you can and should do everything in your power to co-operate with the GAL’s investigation and provide them the information they need to truly evaluate the situation.

The factors the court relies upon to determine custody in contested matters are varied and many. No single article is intended to encapsulate the entirety of the factors the court would take into consideration in every circumstance. Our office highly encourages individuals with child custody issues to call and speak with an experienced family law attorney who will be able to apply your unique facts to analyze the best options before the court.

This article is not intended as legal advice. Please contact one of our experienced family law attorneys for a free legal consultation today.

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