When the parties involved in a divorce cannot agree on child custody, most states have laws that set forth the factors the judge must consider when determining custody. A few states do not have any factors in their laws, and leave it up to judges to determine custody (with guidance from decisions of the state appellate courts). These appellate court decisions usually end up discussing the same factors that are found in the laws of the other states. All of these state laws and court decisions can be traced back to the concept that a custody decision should be based upon what is in the best interest of the child. The factors used by courts today are simply attempts to explain how a judge should determine a child custody decision resulting in the best interest of the child.
In making a decision, judges often take into consideration:
1) which parent is more likely to allow the other to visit with the child;
2) the love, affection, and other emotional ties existing between the child and the parent;
3) the ability and willingness of each parent to provide the child with food, clothing, medical care, and other material needs;
4) the length of time the child has lived with either parent in a stable environment;
5) the permanence, as a family unit, of the proposed custodial home;
6) the moral fitness of each parent;
7) the mental and physical health of each parent;
8) the home, school, and community record of the child;
9) the preference of the child, providing the child is of sufficient intelligence and understanding; and,
10) any other factor the judge decides is relevant.
How to look out for the best interest of your children while going through a divorce
The best interest of your child is the primary factor the court considers in a child custody case. Both the parents will have to present strong reasons to support their cases for the court to analyze before granting the child custody. The factors that contribute to the best interests of the children are:
Age and health of the kids
The court takes into consideration the age and the health of the children when granting child custody to one of the parents or both of them. If the kids are infants and need constant care, the court will decide upon the custody and the visiting rights of the parents.
Bond the kids share with the parents
If the children are closer to one parent than the other, the court might consider the decision of the child. But again, this decision also depends upon the age of the child. In Georgia, a child of age 14 and above can have his or her say in this matter.
The time spent by parents with the kids
If the child has been taken care of by one parent more than the other, that parent would be given more importance in the court’s decision. Sometimes a parent might not be very actively involved in taking care of the child on everyday basis. Therefore the parent who has spent more time would get an edge in this case.
If one of the parents has had a history of domestic violence or substance abuse, it is natural for the court to provide the custody of the children to the other parent to create safe living environment to the kids. The court also sees to it that the parents have no criminal records whatsoever.
Employment and income of the parents
If one of the parents does not have stable job, then the case might work in the favor of the one who has. Another basis is the income of the parents. The parent who is earning more and is capable of taking care of the children would be given an edge over the other.
Ultimately, the parent who is capable of providing the children better facilities in terms of education, food and home, will be the one who has a stronger case. That is what constitutes the best interests of the kids in the eyes of the law.
If your child has special needs, the ability of you and the other party to meet those needs may also be considered whatever the causes of divorce may have been. Special needs involve the gifted child who has special educational needs, as well as the child with physical or emotional problems and handicaps. This will probably involve expert testimony to verify the child’s condition and needs, and show which parent is best able to meet those needs. This does not mean the financial ability to meet the needs, because that can be taken care of by child support. However, if the child needs daily in-home physical therapy, the judge may grant custody to the parent who works fewer hours and therefore has more time for therapy.
How a judge determines child support in a divorce case
Here are some of the models used to calculate the payments non-custodian parents have to pay for their child’s needs:
- Income shares model.
With the income shares model, the guiding principle is that the financial support required of both parents need not change even if they are already separated or divorced. The obligation is based on a certain percentage of the income of both parents, basically the same amount that would have been required of them had they been living together. The percentage varies based on different states and the special circumstances in each child’s cases. However, the amount of support paid by both parents may also require comparison of the parents’ income in relation to each other. If one earns more than the other, then the former would have to pay more for child support.
- Percentage of income.
This model shows the amount of support for the child’s needs to be paid as a certain percentage of the income of the non-custodial parent. There is an income percentage set by the court though the dollar amount may change based on the financial situation of the non-custodial parent. There is no set amount of money to be paid by the custodian parent as it is assumed that this party is already providing enough for the child.
- Melson formula.
The Melson formula is a modified version of the incomes shared model, but it is a more complex version. It considers the self-support needs of both parents and the support needs of the child, including medical expenses and even child care costs. It also considers the standard of living adjustment, wherein parents with an improved source of income need to share more for the child’s needs. Both parents’ income has to be determined after getting their joint net income
After the court room: how to seek personal peace & understanding after divorce
After divorce and child custody agreement, family divorce mediation offers the opportunity to achieve peace and understanding. You can respect the years you spent with your spouse and the rewards you exchanged when you mediate the divorce. It is possible that the last years of your marriage haven’t been satisfactory. However, you married because you were in love. It is important for your personal well-being, and your children’s well-being to be at peace with the divorce, and be able to move on.
The process of divorce is tough. When children are involved, the divorce case becomes more complex, and more emotional. It is important to partner with a Divorce and Child Custody lawyer that is experienced & compassionate, to help you get the results that are in you & your children’s best interest.
Martha Hall, of The Hall Law Group, understands the challenges, and has provided excellent counsel for families in Divorce & Child Custody cases in Georgia for over 14 years. Martha is passionate about helping families when they are faced with complex family law issues. She has helped many families work through complicated divorces in Statesboro, GA, Springfield, GA, Sylvania, GA and the surrounding areas.
Martha Hall concentrates in Family Law. Specifically, she concentrates in the areas of Divorce, Child Custody Issues, Child Support Issues, Adoption, Mediation, and Legitimation. Martha attended The University of Memphis—Cecil C. Humphreys School of Law and received her Juris Doctorate, Law in 1994. The Hall Law Group has two South Georgia offices to serve you, one in Springfield, GA and one in Statesboro, GA. The attorneys at Hall Law Group, PC provide focused and experienced representation from your initial consultation until the resolution of your legal matter. We are dedicated to serving individuals and businesses and offer a broad range of legal services.
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