Factors Considered by Judges When Deciding Custody Arrangements

April 27, 2020
Kid on a Swing

The Best Interests of the Child. These five words comprise a single standard used often in Family Law litigation across all 50 states. An evolving term, The Best Interests of the Child Standard requires that all custody and visitation discussions/agreements are made to foster and encourage the child’s happiness, security, mental health, and emotional development into young adulthood [1].

Interpretation of the standard is ultimately up to the jurisdiction of the court and often addressed on a case-by-case basis. There are certain meriting factors, however, that judges typically consider. With a 30-year history in Family Law, including 15.5 years on the bench before retiring to part-time mediation and arbitration, Judge Angie Arkin provides insights on these factors, which include: the age of the children, the parents’ relationship with the children, and other significant challenges.

Age of the Children

Two Kids Playing in the Sea

“The age of the children is going to matter because younger children have very different developmental needs compared to older kids. So, whatever the parenting arrangement is going to be is very much impacted by how old the kids are,” Judge Arkin says.

For this reason, parenting plans for younger children will likely vary from older children’s schedules. As children are generally less independent and more attached to their parents at a younger age, a greater amount of exchanges between parents may be an effective option that a judge considers when ruling on custody arrangements.

Parents’ Relationship with the Children

Parents’ Relationship with the Children

Another important factor that judges consider is the parents’ contact and history of their relationship with the children. “If both parents have a history of being engaged and involved with their kids, that will matter a lot. If both parents have been significantly involved with their kids and there are no safety issues for the children, then ordinarily, you will be looking at some sort of shared parenting,” Judge Arkin says.

The question is, how can parents demonstrate the bond that they have with their children in court? Evidence that can help strengthen the case includes documents pertaining to the parents’ involvement in education and extracurricular activities, such as enrolling your child in school, remaining involved in his or her education, and staying active in any sports or hobbies that he or she may participate in. A significant contributing factor that many courts look at is which parent has been the child’s primary caretaker. Courts often seek to determine this by focusing on which parent was responsible for the children’s direct care-taking responsibilities, such as caring for their hygiene, meal planning and preparing, purchasing clothes, maintaining laundry responsibilities, and arranging health care, throughout the marriage [2].

As divorce can be a time of uncertainty and unease for all parties involved, ensuring that children maintain a sense of security and normalcy in the subsequent months and years following the split can be essential for the children’s health and well-being. This includes not only maintaining a child’s primary caretaker but making sure that the non-custodial parent is able to spend time with their children, as well. Speaking to this, judges generally favor arrangements that grant both parents the right to visitation to ensure that children maintain those bonds.

Significant Challenges

A Young Boy Jumping in a Lake

“If one party has a challenge related to substance abuse, violence or mental health, or a child has significant challenges and one parent or the other is not addressing that child’s special needs, then those are things that are going to be very relevant in what is decided for the custody agreement,” Judge Arkin says.

In these instances, clear evidence of significant challenges, including abuse, neglect, or instability, must be presented in court. “The first thing you have to do is get beyond the mere allegation that someone is abusing alcohol. Someone has to present credible evidence that there are alcohol issues with one or both of the parties,” Judge Arkin says. “In these types of cases where alcohol allegations are present, it is my responsibility to protect first and then ask questions.”

Evidence of a parent’s history of substance abuse can include a conviction, police records, or testimonials. Proof of consistent sobriety can be provided through testimonials, court-approved rehabilitation programs, and alcohol monitoring. Offering facial recognition, tamper detection, and real-time results, Soberlink’s Advanced Reporting provide admissible evidence that has been proven in court since 2011.

Soberlink Monthly Client Detail Report

For Family Law cases involving alcohol abuse, Soberlink offers two levels of alcohol monitoring:

  • Level 1: Flexible monitoring, only during parenting time with self-managed tests.
  • Level 2: Consistent monitoring, seven days a week with testing schedules managed by Soberlink.

The decision between Level 1 monitoring during Parenting Time Only and Level 2 monitoring Daily Testing will depend on parent preferences as well as the risk level associated with the situation.

Despite many custody cases being a contentious issue, Judge Arkin shares that most cases are resolved by individuals conceding. Today, only about 5-10% of cases resulting in custody disputes go to a hearing. Reaching this agreement can be challenging, but keeping the above factors into consideration can help parents and lawyers create an agreed-upon parenting plan so that both parties may maintain relationships with their children. Drafting a detailed parenting plan that includes clauses for a variety of circumstances and proof of evidence, such as Soberlink in cases involving alcohol abuse, will make co-parenting more manageable for all parties involved.

Custody Arrangements During COVID-19

A Mother Carrying Her Son

In today’s unprecedented times, it’s especially important for parents to attempt to work together to better navigate difficult circumstances in order to help their children maintain solace in what may be a confusing time for them. Judge Arkin weighs in on the current state of affairs and how to navigate these evolving landscapes, stating that the existence of a pandemic is not a basis for restricting visitation. Thus, it’s appropriate to maintain court-ordered parenting plans, allowing for children to visit both of their homes under a state’s stay-at-home order.

“However, if one party is behaving in a way that places the children at risk or the other parent has some type of underlying condition such as asthma, cancer, or mental illness, then that does become an emergent situation that the court needs to address,” Judge Arkin says. Potential at-risk factors can include alcohol abuse, domestic violence, and severe mental health issues. Several states, including Colorado, where Judge Arkin serves, are addressing these Family Law cases as a priority. Family Law courts in both California and Colorado offer a request for temporary emergency to focus on matters that cannot be heard during the court’s regular hearing calendar.

As Judge Arkin warns, these emergency forms are not to be filed lightly. “You have to pledge that the child would be immediately in danger in the other parent’s care, and you want to keep the child in your care until the court can address it,” Judge Arkin says. In these instances, the age of the children, parent relationship with the children, and significant challenges may all be considered in court. Whether an emergency court date is granted, or a history of alcohol abuse is a cause for concern in your custody case and parenting plan at this time, Soberlink can provide an added layer of accountability and security for parents to ensure children’s safety and peace of mind across all parties.

[1] Focusing on the “Best Interests” of the Child
[2] Child Custody Basics

About the Author

Soberlink supports accountability for sobriety through a comprehensive alcohol monitoring system. Combining a breathalyzer with wireless connectivity, the portable design and technology includes facial recognition, tamper detection and real-time reporting. Soberlink proves sobriety with reliability to foster trust and peace of mind.

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