A very Important Divorce-related Issue: Child Custody

A very Important Divorce-related Issue: Child Custody

For many centuries until the latter part of the 1900s, two practices became prevalent where child custody was the issue: the Tender Years doctrine and the Maternal Preference doctrine. In both practices custody of the child was always awarded by judges to mothers as judges believed that mothers were naturally more capable of providing the love and attention that children need (it was only through proving that the mother was unfit for the father to be given custodial rights). These doctrines have been abolished, though, and began to be replaced by the “the best interest of the child” doctrine during the last quarter of the 1900s due to the belief that the old practices violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. Despite the doctrines’ abolishment and their perceived violation of the equal protection clause, many judges still end up favoring mothers and, so, award to them custody, especially, of young children.

There are courts, however, that decide to award custody to both parents in consideration of the new doctrine and due to the belief that it is very important that a child develops a strong bond with both of his/her parents. However, there is no certainty that joint custody will be the decision a court will make, unless it sees both parents as fit, will contribute well in the child’s development and that the decision will be in the child’s best interests.

Whether sole custody or joint custody, the factors that courts and states believe as important bases when making a decision include:

  • the amount of involvement each parent has given and can give the child in his/her activities;
  • the level of relationship between the child and each parent;
  • the parents’ individual lifestyle, health and financial stability;
  • factors that can affect a child’s academic performance, such as parental care, availability of parent whenever the child would need his/her time and attention;
  • the age and gender of the child; and,
  • the possible physical, emotional and health risks in the environment where each parent lives.

As explained in the website of The Maynard Law Firm, in sole custody or sole managing conservatorship (as it is called in the state of Texas), “Parents who are appointed the sole managing conservator of their children are generally awarded all of the rights, powers, privileges, and duties that are associated with caring for their children. As such, the other parent generally will not be granted many rights, if any, to make decisions about their child’s future.”

With regard to joint custody or Joint Managing conservatorship, however, the firm says, “When agreed to by the parents, or when the Judge determines it is in the best interest of the children, parents who are appointed joint managing conservator of the children generally share the majority of the rights, powers, privileges, and duties that are associated with caring for their children. Many times the children’s domicile will be restricted to a specific geographic area to enable both parents to equally participate in the children’s day-to-day lives. The parent with whom the children reside the majority of the time and who is also awarded the right to determine the primary domicile of the children is sometimes referred to as the primary joint managing conservatorship.”

Whether your divorce case is settled in court or through the privacy afforded by an alternative divorce process, it may be best that you have a knowledgeable child custody lawyer counselling you as this may help you understand your right and make an informed decision that will be for the good of everyone.