September 17th, 2021

16 Factors Considered by the Court When Awarding Child Custody

Married or not, couples with children who make the choice to end their relationship may face a custody battle. As our Family Law team counsels our clients, we first seek to educate them about the process, system, and factors considered in child custody matters. Read on to learn what to expect when you’re seeking custody of your child.

Defining legal and physical custody

There are two types of custody: legal and physical. Legal custody involves the right of parents to make major decisions concerning a child, including, but not limited to; medical, educational, religious, participation in after school activities, etc. There are two forms of legal custody: sole and shared.  Sole legal custody provides for one parent to make all of the aforementioned decisions. Shared legal custody requires the parents to consult one another when making said decisions. Absent a showing that one party is incapable of making such decisions, courts will usually order shared legal custody.

Physical custody pertains to where the child resides. Primary/sole physical custody permits one parent to have the child, in his/her residence, the majority of the time. Joint physical custody allows both parents to have significant time with the child, in his/her residence. It is important to note, that the joint physical custody does not necessarily mean that the time spent between the parents will be equal time.

Factors considered by the court when making a child custody decision

In order to decide custody matters, courts consider what is in the best interest of the child. The court must consider the following sixteen (16) factors, giving weighted consideration to those factors which affect the safety of the child, when rendering its decision.

  1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  2. The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child. (see section 5329.1(a) relating to consideration of child abuse and involvement with protective services)
  3. The parental duties performed by each party on behalf of the child.
  4. The need for stability and continuity in the child’s education, family life and community life.
  5. The availability of extended family.
  6. The child’s sibling relationships.
  7. The well-reasoned preference of the child, based on the child’s maturity and judgment.
  8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
  9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
  10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
  11. The proximity of the residences of the parties.
  12. Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
  13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
  14. The history of drug or alcohol abuse of a party or member of a party’s household.
  15. The mental and physical condition of a party or member of a party’s household.
  16. Any other relevant factor.

The judge’s order must reference each of the aforementioned factors. If there are ones that are inapplicable, the judge must specifically reference it and state why it does not apply.

Family Law Attorneys Constance K. Nelson and Kellie L. Rahl-Heffner provide guidance to individuals seeking legal counsel in divorce, child custody and guardianship, alimony, and other family law matters. 

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.