One of the most significant issues between divorcing parents is custody of the children.  There are two custody categories – legal custody (which is decision-making) and physical custody (which is where the children live).  There is no black letter law used to determine physical custody of the children when the parents cannot reach an agreement.  Rather, the court’s exercises its discretion and determines what is in the child’s best interest.

The courts use specific factors when determining what is in the child’s best interest.  Specifically, the custody factors used to decide physical custody of the children are:

1) Fitness of the parents

While you cannot change your past behaviors, you can certainly modify your behavior going forward. When you have your children with you, you should engage in child-centered activities.  It’s a good idea to be involved in your children’s education and extracurricular activities.  In doing these things, you develop a reputation of being “a good parent”.

2)  Character and reputation of the parties

The best advise here is to be conservative. For example, getting a DWI while fighting for custody will be held against you.

3)  Desire of the natural parents and agreement between the parties

The best way to make this factor favor you is to treat the other parent with respect – especially in written communications. Assume your Judge will read all the emails and texts that you send to the other parent.  So be polite.  You should also be willing to compromise and express the compromise in writing.  The court looks favorably on the parent more willing to compromise.

4) Potential of maintaining natural family relations.

Support your child’s involvement with the cousins, grandparents, aunts and uncles – whether on your side of the family or not. Be willing to share holidays.  Be willing to give up time with your children if extended family visits from out of town.  And document all you do in this regard.  Likewise, if the same courtesy is not returned, document that and tell your attorney.

5) Preference of the child

Be good to your child. Some parents become “Disney Mom or Dad”.  If you choose this route, be careful that it does not backfire. Do not let your child stay home from school or skip homework.  Make certain your child goes to bed at the right time.

6) Material opportunities affecting the future life of the child

This factor does not come into play too often.

7) Age, health, and sex of the child

This factor is a huge consideration when you are dealing with infants. The overriding school of thought is that children under 2 are best living primarily in one home.  This plays heavily against Dad’s when the children are still nursing.  This factor may also be weigh heavily when children have mental illness. For example, autistic children do not transition between households well.

8)  Residence of parents and opportunity for visitation

When custody is being decided by the court, it is best to stay within your children’s school district. It is also not a good idea to move far away from the other parent.

9) Length of separation from natural parents

The consideration here is really more about what has happened between you and the children since you separated. Whether you shared custody or the children have been primarily with you ,are paramount considerations when determining who the children will live with.  You should do your best to have the schedule with your children that you want on a permanent basis.  So if you want a week on – week off access schedule permanently, do all you can to start your separation with that arrangement.

10) Prior voluntary abandonment or surrender of the child or a child

This is similar to Factor 9. It is critical that you stay involved with your child on a day-to-day basis.  That you strive to have the access that you want from the time you separate.

 Why Consult An Attorney?

Attorneys know what the court will consider, and what actions you can take to better your chances to achieve your child visitation/access goals.  For more than thirty (30) years, we have helped clients in Germantown, Gaithersburg, and throughout Montgomery County with their family law needs. Our attorneys are available to meet with you in-person, over the phone, or online – however you prefer. Contact us here, go online to schedule an appointment, or call us at (301) 515-1190 to set up an initial consultation.