How Does a Court Decide Custody of Our Children in a Divorce?
Every family law attorney will begin to answer this question in the same exact way: the court uses the “best interests of the children test.” However, the uniformity of the answer does not necessarily mean that it is simple. Instead, while everyone knows about the best interests test, its exact operation can vary from judge to judge.
The mantra of every single court when deciding a custody case is that the children come first. A judge will not make decisions for the sake of the parents but rather will look at how each outcome would affect the children. It is critical for parents to have the support and representation of Ventura and Santa Barbara child custody attorneys.
How the Best Interests Test Works
In reality, the best interests test is meant to be flexible. The first thing that the court will look at is the health, safety, and welfare of the children. After that, a judge will ask whether there is a history of physical or substance abuse. Further, if the child is older, the court must also give weight to the preference of the child about where they want to live.
Beyond that, the court has a number of factors that they may consider with the overarching principle that it is better for both parents to have continued contact with the children. With that in mind, a judge may favor a parent who would further and encourage the relationship between the child and the other parent.
A judge could also favor the arrangement that offers the most stability for the child in light of their previous living arrangements before the divorce. If one parent was the primary caretaker, chances are that they would receive custody.
Judges Have Very Wide Leeway in Deciding Custody
Some states give an entire laundry list of factors that courts may consider in applying the best interests test. California is not like that. After the initial considerations are addressed, judges have wide leeway to act within their discretion in deciding custody. It is up to an experienced family law attorney to work with their clients to figure out what arguments might persuade the judge in their case. It would not be uncommon for two judges to reach two entirely different results with the same exact facts.
Parents are usually best off when they are able to negotiate a solution on their own without the need for a judge’s decision. This will keep control of their case in their own hands. However, if the case ends up in court, you are taking on the risk that the judge may not see custody the same way as you. Nonetheless, going into court may be unavoidable when one parent absolutely refuses to compromise.
Contact a Ventura and Santa Barbara Child Custody Attorney
For your Ventura or Santa Barbara custody matter, speak with the experienced family law attorneys at Bamieh & De Smeth, PLC. Call us at (805) 643-5555 or contact us online to schedule your free consultation and find out how we would put our results-oriented approach to work in your case.