Frequently Asked Questions ("FAQ")
on Factors in Determining Child Custody
Experienced in Responding to Frequently Asked Questions (“FAQ”)
Q: What Factors Go into Determining Custody and Visitation?
A: The primary consideration is always: “What is in the best interest of the child?” The focus is from the viewpoint of the child, as opposed to the wants and desires of one parent or the other.
Some states have a general rule that it is in the best interest of a child to have continuing and frequent contact with both parents. The parent who is most supportive of this concept becomes the custodial parent. If one parent attempts to undermine the relationship between the child and the other parent, this factor could be a consideration in providing custody or more visitations to the other parent. The courts evaluate the best interests of the child on a case-by-case basis upon consideration of all relevant facts on the circumstances of both parents.
Q: Is Marital Status Important in Seeking Child Custody and Visitation?
A: Marriage or the lack of marriage, insofar as child custody and visitation are concerned, has no bearing whatsoever in the eyes of the court. The judge will rule on what they believe to be in the best interests of the child.
Q: Is Homosexuality an Important Factor in Determining Custody?
A: LGBTQIA+ parents should not be automatically disqualified from receiving full or partial custody of their child. How well the parent meets the needs of the child and a child’s best interests should always be the determining factor.
If you find yourself in a custody battle and you suspect that your sexuality or gender preference may be a determining factor, expert witnesses—psychiatrists, child psychologists, etc.—may be a strong source of help in the courtroom. Credentialed professionals in their respective fields can give the judge a trusted opinion on who will better meet the needs of your child. Your lawyer can assist you in creating the best plan of attack. This may mean home evaluations and psychological evaluations about the fitness of a parent, the stability of the home environment, and the child’s emotional ties to each parent.
Q: Does Religion Enter into Determining Custody?
A: Not usually. Whether one parent practices a certain religion is not normally a determining factor in custody, unless there is evidence of potential or present harm to the child. Typically, these situations include cult-like activities or a particularly unorthodox lifestyle that might put the child in danger or is detrimental to the child’s best interests.
Q: Does an Extramarital Affair Have an Impact on Custody?
A: It could, depending on the facts of the case. Generally, a discrete affair will not be a consideration in determining custody. It will become a significant negative factor if the relationship represents a threat, has harmful sexual overtones, or puts the child in embarrassing situations.
If there is a live-in situation, the judge will evaluate, among other relevant circumstances, the relationship between the child and the other live-in partner. Any evidence of present or potential harm from the situation determines whether this should be a factor to consider.
Q: Do the Wishes of a Child Have Any Influence in Custody Decisions?
A: Some states allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to live with one parent or the other. Judges will listen to the child’s stated preference and their reasons. But, the child does not have the final say. It will be the judge’s decision how much consideration the child’s wishes receive, depending on the child’s age, maturity, and the quality of the reasons. The overriding question is always: What is in the child’s best interests?