How Do Judges Make Custody Decisions?

By November 3, 2015Child Custody
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For many people going through a custody battle, the process can seem both frightening and mysterious – frightening, because legal and physical custody of the child is at stake, and mysterious, because no clear-cut method seems applied in reaching the custody decision.  And while the process may seem somewhat undefined, Missouri law actually sets out a strict procedure judges must follow in making a custody determination.

Initially, a judge goes with what the initial pleadings state – so if both parties agree on the requests for legal and physical custody, the judge will assume the parties are not too far apart and the process will run more smoothly.  On the other hand, where the parties both want sole custody and hurl accusations at each other, the judge will know this case will be contested and challenging.

Judges have very few options in making custody determinations.  A judge may grant both parties joint legal custody, give one party sole legal custody, or in some cases divide certain responsibilities between the parties (for example, one parent has final say on medical decisions, another on school issues).  With physical custody, the court has the labels sole and joint physical custody, but in the end the decision has less to do with the labels and more to do with the time each parent receives and the elements of the Parenting Plan.

When cases involve allegations of domestic violence or abuse, the judge must appoint a guardian ad litem to assist in gathering information for the judge.

In order for a judge to make a custody decision, the parties must disagree about custody and have an actual trial where each side presents evidence that bears on the fitness of the parents and their ability to parent individually and collectively.  The judge will base the custody decision only upon the evidence introduced by the parties and by the guardian ad litem if one has been appointed.

In such a contested proceeding, the judge must issue a written judgment that includes a detailed listing of the factors considered in making the particular custody determination and the facts supporting that decision.  Here, the General Assembly made what the judge must consider very explicit:  the wishes of each of the parties as set forth in their respective parenting plans; the need for frequent, continuing and meaningful relationships between each parent and the child, and the ability of the parents to facilitate that need and parent separately and collectively; the relationship of the child with siblings and other key family members; which parent is more likely to assure frequent, continuing and meaningful contact with the other parent; the child’s adjustment to home and community; the mental and physical health of all parties; the intention of a parent to relocate; and the wishes of the child if the child is old enough and mature enough to express those wishes.

These factors are not exhaustive; the court must at a minimum consider all of these, and perhaps more.  And above all, the court must decide what is in the best interests of the child.  Some people think that the phrase “best interests of the child” is rather vague and allows the judge the ability to do whatever he or she wants to do.  However, while that may seem so on the surface, the explicit listing of specific factors and the requirement of detailed findings on these factors forces the judge to put sufficient explanation to the chosen “best interest” arrangement for the child.

In a contested proceeding, a parent should understand how the judge will consider these factors and give his or her attorney as much information as possible to present to the judge at trial to support the desired custodial arrangement.

In the end, the judge has a weighty task, and one or both parents may feel disheartened by the outcome.  Consequently, the best path parents can take in a custody determination is to take the decision away from the judge by reaching an agreement themselves to present to the judge for approval.  The more that parents can do by agreement, the more likely the parents will feel empowered and happy with the outcome.

If you have questions about custody determinations, contact us – we can help.