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How Does the Court Determine Child Custody?

Posted on November 15th, 2020

Determining Guardianship & Custody

Historically, children of divorcing parents would live with their mothers, though the court now awards custody to a child’s primary caregiver. Mothers usually assume this role, making them still more likely than fathers to be their children’s primary custodians. Fortunately, other factors come into play to benefit fathers.

Divorce Involving Children

When couples who have children decide to divorce, they may worry about how to tell their children. Many child psychologists recommend that both parents are present when their children find out about the divorce. The discussion should consider:

  • A child’s age and maturity
  • An opportunity for a child to ask questions
  • Reassurance from both parents
  • A discussion about living arrangements
  • An opportunity for a child to express emotions
  • A positive demeanor

Parents should remain civil around their children and avoid using them to communicate with each other. 

Who Gets Custody?

Ideally, parents can negotiate a custody agreement that they can both accept. If this is impossible, the court must determine custody based on various factors.

The Child’s Primary Caregiver

The mother is usually the parent responsible for handling the basic needs of infants and toddlers. In some instances, it is the father. Ultimately, the parent that spends most of the day with the child is the primary caregiver and likely to receive custody.

The Parent-Child Bonds

Although some parents share caregiving responsibilities, a parent who travels extensively or is frequently absent for any reason should not expect to receive custody but is likely to be granted visitation.

The Parents’ Wishes

When both parents are reasonable and consider their children’s welfare, the court is more likely to honor their proposal for custody and visitation.

The Child’s Wishes

Though children are not typically good judges of what is in their best interests, the court may consider a child’s wishes to some extent when finalizing details regarding visitation or custody.

The Parents’ Behavior

The court is obligated to protect the welfare of minor children and considers the background of both parents when determining custody. Parents significantly lower their chances of obtaining guardianship and may lose visitation privileges if they have a history of:

  • Behavior leading to criminal convictions
  • Drug or alcohol use
  • Physical or verbal abuse
  • Financial irresponsibility

The Changes the Child Must Endure

If the court finds that both parents are suitable, but one parent must move far away, the parent that continues to live where the child experiences the least disruption is likely to obtain custody.

If you and your spouse are planning to divorce and can’t agree on child custody, consult with our experienced guardianship lawyer in Bozeman, MT at the Silverman Law Office for practical guidance.



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