Basics of Divorce - Custody Factors (Part 2)

The statute regarding custody of children sets forth two important additional rules. First, it states that the Court may not give greater weight to one of the best interest factors to the exclusion of the others. That is, the Court must address all of the factors in its Order prior to issuing its decision. As a practical matter however, certain factors tend to come to the surface and tip the scales in custody cases. In some cases where one parent has served as a child’s primary caretaker during his or her lifetime, said parent may emerge as the child’s sole physical custodian during the divorce process. Likewise, in cases involving untreated substance abuse or mental health issues, those issues often become the focus of an unfavorable custody decision.

Second, the law states that the Court may not consider conduct of a parent that does not affect the parent’s relationship with the child. There is typically a lot of hurt that goes along with going through a divorce and in many cases, one spouse has had an affair and is already in a new relationship. While it may be very unfair, barring some danger to the children, the affair is typically not considered by the Court in the proceeding. Likewise, while it can be difficult to discuss, the proliferation of the internet has led to more discussion about pornography in divorce proceedings. And again, generally, the Court does not address the issue as it relates to custody unless it has a direct impact on the children.