Issues in determining who is awarded child custody
The issue of child custody is one of the most important and critical issues in the
dissolution of a marriage. The separation of parents may adversely affect or even
traumatize children. It is almost always preferable for the parties to seek an amicable resolution to all questions concerning residential custody, legal custody (the ability to have final decision-making on major issues) and access of the non-custodial or the joint custodial parent. The guiding principal in resolving these issues is the best interests of the child or children. If parties are unable to arrive at an agreement on these issues, they turn to the Court to render a determination on the primary residence of the children, how major decisions are made regarding the children’s lives and the access each parent will have with the children. Whether these issues are determined in a non-litigation or litigation setting, there is a substantial body of caselaw which has provided parties and Courts with standards and factors to be considered in determining the best interests of the child or
children. These standards are divided into two (2) major categories, Parental Fitness and The Needs of the Child/Children.
(A) Parental Fitness
The following factors should be considered in determining a parent’s fitness
to be the residential and/or legal custodial parent of a child under the age of 18 years:
Abandonment: If a parent has been absent from a child’s life for a substantial period of time, the nature of the abandonment, whether voluntary or involuntary and the length of separation will be considered in determining that parent’s fitness.
Mental Illness: If a parent has a history of psychiatric problems such as depression, paranoia or suffering from delusions, these may render a parent unfit to have custody of the child or children.
Abuse or Neglect: If, during the history of the child’s life, there
is evidence that a parent has been physically or emotionally abusive
or neglectful to a child, this will and should be a consideration in
determining that parent’s fitness.
Abuse of Drugs or Alcohol: While not necessarily determinative, a history of drugs, alcohol or other substance abuse would be considered regarding a parent’s fitness on the issue of custody.
Domestic Violence: If there is evidence that one parent has engaged in acts of domestic violence, it may be inferred that parent might be ill-suited to display …