DISCLAIMER: This is intended to be an educational and informational guide.  It is not intended to be or to substitute for legal advice and representation.  Law, legal requirements, and procedures vary from place to place.  It is advisable to consult an attorney.

When two people with children live separately, the child often get caught in the middle.  When those two people cannot agree on who shall have custody of their child, the Judge will award custody based on the child's best interest, not the interest of anyone else.

To determine what is in the best interests of the child, the Court may look at different things, such as: 

1. The age and sex of the child;  
2. The wishes of the child's parent or parents;  
3. The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years old;  
4. The interaction and relationship of the child with each parent, brothers and sisters, and any other person who may strongly affect the child's best interests;  
5. The child's relationship to his home, school, and community; and  
6. The mental and physical health of all people involved.

What does the court NOT look at in a custody case?

To determine what is in the child's best interests, the Court will generally not look at things such as:

1. Anything that is "suspected" about a parent but no details about the behavior and what harm it causes the child can be provided;  
2. The race or ethnic background of a parent;  
3. A parent's sexual orientation, unless it is shown to the Court that the child is endangered or harmed by that behavior; or  
4. A parent's having sex outside the marriage, unless it is shown to the Court that the child is endangered or harmed by that behavior. 

What other tools may the court use to gather information?

Some tools the Court may use to find out more information about each parent are home study reports and psychological evaluations. In a home study, an expert will go to each parent's home, inspect the home, and talk to each parent.  A written report will be given to the Court.  There is a charge for a home study and it may take months to complete.  In a psychological evaluation, each parent will be interviewed and tested by an expert and a written report will be given to the Court.  There may be a charge for a psychological evaluation and it may take months to complete.  The written reports may be seen by both parents and their attorneys, if the Court allows.

The Judge may interview each child in his/her office to hear that child's wishes concerning where the child wants to live.  Neither parent is present during an interview between the Judge and child.  A Court Appointed Special Advocate (CASA) or guardian ad litem (GAL) may be appointed to represent the interests of the child.  A GAL or CASA may make home visits, speak with the parties, child, and service providers and make reports to the Court.  There may be a charge for a CASA or GAL.

What can you do to help?

It is your responsibility to assist your attorney in preparing your case.  You must provide any information requested.  You should begin keeping a record of your activities, contacts with your children, and the actions of the other parent.  You can keep the record in any ordinary notebook, but do not take any pages out or put any pages in.  You do not have to write about every single minute spent with your child; just record the date you saw the child and what you did.  If a conflict arises with the other parent, write down what the conflict was about and what happened.  This notebook will help you remember and be able to tell the Court about the length and quality of time you have spent with your child and what problems, if any, developed. 

How difficult is it to appeal a custody order?

Custody orders made by the Court are difficult to appeal.  The Judge has great flexibility in deciding what facts to believe and how important each fact is. The Judge's decision can only be reversed or changed on appeal for errors of law, not fact. Legal Aid Society does not handle appeals.  If you want to appeal the custody order made by the Court, you must contact a private attorney.  You only have a limited and short amount of time to do this, so you will need to act quickly.

What is Joint Custody?

There are two kinds of "joint custody", joint legal custody and joint physical custody.      

• Joint legal custody means that the parents will share authority over and responsibility for major decisions concerning the child's upbringing, including education, health care, and religious training. Joint legal custody does not address who has physical possession of the  child at a given time.     
• Joint physical custody means that the parents will share physical possession of the child fairly equally. Often there will still be a primary physical custodian and a parent with non-custodial parenting time.  Often there will still be a child support order.