How is Custody Decided?

In the best of all worlds custody is decided by both parents in an Agreed Parenting Plan. This is a plan that tells the court how the parties would like custody to be decided. It designates which parent has the right to determine where the child lives. It sets forth what rights and duties each parent has with regard to the child and whether those rights are shared or exclusive. This permits the parents to make the decisions with regard to their children, as long as the court believes the parenting plan to be in the best interest of the child.

When the parents are unable or unwilling to reach an agreement then the court must make the decisions with regard to the children. The court will look at the circumstances to determine what is in the best interest of the child. The court may consider:

The desires of the child
The child’s emotional and physical needs now and in the future
Any emotional and physical danger to the child now and in the future
The parental abilities of the individuals seeking primary possession
The programs available to assist these individuals to promote the child’s best interest
The plans for the child by those seeking primary possession
The stability of the home or proposed placement
The acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one and
Any excuse for the acts or omissions of the parent

Because every situation is different the court may order a social study to determine which living situation would be in the best interest of the child. The court will appoint a private agency, another person, or a domestic relations office to conduct the social study. The following elements must be conducted before an evaluator can render an opinion about conservatorship, possession, or access:

Personal interview of each party;
An interview, conducted in a developmentally appropriate manner, of each child who is at least four years of age;
Observation of each child regardless of the age of the child;
The obtaining of information from relevant collateral sources;
Evaluation of the home environment of each party seeking conservatorship, possession of, or access to the child, unless the condition of the home environment is identified as not being in dispute in the court order requiring the social study;
For each individual residing in a residence consideration of any criminal history information and any contact with the Department of Family and Protective Services or a law enforcement agency regarding abuse or neglect; and
Assessment of the relationship between each child and each party seeking possession of or access to the child.

It is generally presumed that a child benefits from extensive contact with both parents and that both parents should be appointed as joint managing conservators. This means that both parents make decisions with regard to the children. It can mean that both parents have equal time with the children, but it does not have to. Sometimes the children live primarily with one joint managing conservator and have standard visitation with the other joint managing conservator. There are a number of variations on how much time each parent has with the child.

Alternatively the court may determine that it is in the child’s best interest to live with one parent and have limited or supervised visitation with the other parent. The best interest of the child is always the primary consideration of the court.

How is Custody Decided?