How do Judges decide custody battles?

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It is undisputed that after separation, unless there are special circumstances, the best people to decide the custody arrangement for children are their parents. The parents know the family situation best and if they can agree on a parenting plan between them, it saves the children the conflict of family court proceedings. Judges have specific requirements and factors they have to take in to account however, their limited time spent with the family means they cannot get to know the family in full before their decision has to be made.

A custody decision will affect the rest of the child’s life therefore, is not a decision that can be taken lightly. Therefore, each parent can prepare a parenting plan in which the Judge will assess who best can care for the child. The best interests of the child are the focus of the court’s decision and what parents want will not be taken into account. The Judge will bear in mind the following factors when making their decision in addition to applying the “welfare checklist”.

  • Love, affection and emotional ties. The Judge will look at who the child has formed an emotional attachment to and who they look to as being their caregiver. Also the court will take into account which parent or family member can best cater to their emotional needs by providing a loving, affectionate relationship.
  • The child’s views and preferences. Although this is not the deciding factor, a child able and willing to communicate their preferences can influence the Judge’s decision. Only a child that wants to go to court is welcome and the Judge will not take kindly to parents that have pressured the child into speaking.
  • Length of time the child has spent in a stable home. The Judge will take into account where the child has been living and if this is an adequate, stable home; the Judge will be reluctant to change this if the child is well settled.
  • Ability of each parent to look after the child. Each person’s abilities to look after the child will be taken into account and the Judge will look at their parenting skills and the stability of the family unit. If a person has an unsettled lifestyle, with many partners for example, this will go against them in front of the Judge. An unwillingness to co-operate with the other parent will also influence the Judge’s decision as preventing the child from having a relationship with the other parent without reasonable justification is not evidence of good parenting skills.
  • Relationship by blood is a minor factor taken into account which means biological parents or grandparents can sometime have an advantage over those not related to the child.
  • Domestic violence. The Judge has to take into account any domestic violence the child has suffered at the hands of any people attempting to gain custody as placing the child in a safe and loving home is the priority of the court. Therefore, those with a history of domestic violence may be at a disadvantage when trying to gain custody.

Only after all these factors have been carefully considered can the Judge make a decision on who should have custody based on the best interests of the child.

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