5 Important Factors Judges Will Consider in Child Custody Cases
Child custody cases are among the most difficult types of family court cases for both the litigants and the attorneys. It’s impossible to “split the baby” so to speak so that everyone has exactly what they want all of the time, so emotions always run high when dealing with custody and visitation issues.
When dealing with property and financial matters in a divorce scenario, once decisions are made, they tend to be “final” and everyone walks away with their share of the assets. Not so with child custody issues. When a judge is asked to decide any issue surrounding children, he or she is facing how to craft a court order that will affect the life of a human being — and all of the humans related to the child — far into the future. While the state issues black robes and law libraries to judges when they are sworn in, no one has yet started to issue them crystal balls to be able to see into the future, as many would like to be able to do when making these difficult decisions. Therefore, the judges are left with reviewing the testimony and evidence presented to them during child custody cases to try to find an outcome that lines up both with the laws of South Carolina and the best interests of the child or children involved in the case.
Through the years, I’ve noticed some patterns in the cases I’ve worked on and I’ve put together a list which, in my opinion, are five of the top factors judges typically pay very close attention to when asked to make decisions about children’s issues. While this list is far from all-inclusive, it will give you an idea of things to consider in your own situation before filing a child-related family court case.
1. Strengths & Weaknesses of Each Parent
Before starting any litigation related to your child, you should make a list of the strengths and weaknesses of each potential party (typically Mom and Dad, but you could be facing litigation with grandparents, foster parents, or other third parties). Judges make a lot of comparisons from the bench and family court cases are no different. They must evaluate very quickly which side has the best chance of meeting the needs of the child most of the time. So before filing any action in family court, sit down and make a list. Be brutally honest with yourself. If the judge only looked at this list on paper, which side outweighs the other with regard to the best interests of the child? Now share this list with your attorney so he or she can help you assess how to deal with the qualities on both sides of the case. If this list contains weaknesses on your side that are considered insurmountable at the present time, a good attorney will tell you that, thus saving you (and, ultimately, your child) a lot of grief and money in the process.
2. The Quality of the Proposed Parenting Plan
In South Carolina, each party must submit a “Proposed Parenting Plan” at each Motion hearing asking for a change of custody or visitation. This document outlines exactly how the litigant would like the Court to rule on child-related issues. Just like your banker would scrutinize your business plan before signing off on a capital loan, your family court judge will be scrutinizing this document to try to get a glimpse at whether your position is child-focused or self-focused. As a family court attorney who does a lot of private Guardian ad Litem work, I’ve seen parenting plans that are thoughtfully and lovingly crafted and I’ve seen some that look like they have been thrown together at the last minute with very little thought to how the plan would actually affect the child involved. I can only imagine what the judges think when they see the latter, but I can assure you it likely doesn’t reflect well on the person who submitted it. Take the time to really think through this document and make sure whatever you give to your judge is well-considered and has details about any deviation from the “standard” protocol in these types of cases.
3. Alienating Behaviors of Either Parent
Parental alienation is a term that’s been thrown around quite a bit over the past decade or so in the family court world. So much so that I bet some judges feel like almost every case will have someone claiming “alienation”. But regardless of where judges and attorneys come down on their faith in the research surrounding this topic, anyone who has handled more than a handful of child custody cases, knows that many cases do have “alienating behaviors” exhibited by one or both parties. When child custody cases come before a family court judge, you can bet they will be listening for evidence of these types of behaviors in order to craft parenting plans and court orders to help dissuade the parties from engaging in such behavior going forward. Judges know it’s not good for the children to be exposed to such behaviors and that long-term exposure will have negative effects on the relationships between the parents and children. While family court judges have very little power to undo the family turmoil or problems which led to the divorce, the judges I’ve known will do their very best to preserve the parent-child relationships going forward. Before you file your case, take a hard look at your own parenting behaviors and make sure none of them could be considered “alienating” from a third-party perspective.
4. Educational Opportunities
If you’re asking the family court to change anything at all about the child’s current situation, the judge will certainly be interested in how the change(s) may or may not affect the child’s education. Will a change in school be required and if so, what will be the new options for school? Will the child be losing opportunities or gaining them, such as extracurricular organizations or enhanced academic challenges? And for younger children, what does the change mean for future schools he or she may attend, such as middle and high school, or even their odds to get accepted into a college of their choice? All of these will be factors the Court may ask about or appoint a Guardian ad Litem to further investigate for the Court. Depending on the issues before the Court, the judge may give all of these variables different weights in making their final order. For cases where educational disagreements are the central issue, each party should be prepared to show evidence, other than just their opinion, to support their position. The Court’s main goal will be to do what is best for the child and will want to base its final decision on facts, not simply the opinion of either parent.
5. Medical or Health-Related Needs of the Child
The child’s overall physical and emotional well-being will always be of central importance to the Court. If the parties and/or Court craft a detailed parenting plan or court order, but it does not allow for the medical and health-related needs of the child to be met routinely or at all, everyone has failed the child. Be sure you are aware of any special medical or emotional needs the child may have and have a plan to ensure those are met continuously regardless of the changes the Court may make in other areas of the child’s life. If there are major disagreements between you and the other parent over how to meet these needs, then experts may be necessary to help explain to the Court what the needs are and which parent or home is best suited to give the child the support he or she needs to be as healthy as possible.
Keep in mind that in almost every contested child custody case, a guardian ad litem is appointed to investigate the circumstances of the child’s current situation and make reports to the court to advocate for the best interests of your child. Even if the judge in your case never asks specifically about any of these areas, you can be assured that the GAL will. Be prepared to discuss them fully and honestly with the GAL so that the report to the Court is as comprehensive as possible.
While this list of five factors is far from everything the judge will weigh and consider when making his or her decision in your child custody case if you haven’t taken time to consider the impact of each of these factors with your attorney as you prepare, you may find yourself very unhappy with the results.