The Court looks to the “best interests of the child” standard in determining what sort of parenting plan to put into place in a divorce, legitimation or other custody matter. What this means is entirely in the discretion of the judge of your case. What will the Court look to in making this determination?
I always think of custody cases kind of like salary arbitration in major league baseball. The player is seeking a good contract, so he will show a pattern of past performance and the likelihood this will continue. The owner will argue that the player is older, has injury issues and compare him to lower priced players. The point to be made is that the judge is trying to get a picture of what this child’s life would be if he grants primary custody of the child to one parent or another.
How do you show this? First and most importantly, the judge will look at the child’s life history. Which parent was the primary caretaker during the marriage, who took the child to the doctor, who met with the teachers? I find it funny when a father is complaining that the mother doesn’t cook well enough, clean the house well enough, and occasionally loses her temper. I’ve seen judges ask the father, “So, what is the name of your child’s teacher?” and the father is clueless and looking at his wife for the name of their child’s teacher. No, you can’t phone a friend in the middle of a trial.
The most important thing is that it is the “best interests of the child”, not “best interests of the parent” standard. A parent may not be the best person in the world but the child is more bonded with that parent. Although the other parent may be a better person, if the child is more bonded with one parent than the other parent the court probably would give that parent primary custody.
So how to prepare for a custody battle? First of all, have a clean life. Don’t associate with felons. Don’t do drugs. Don’t run off with a new partner. Secondly, be able to show the Court that you have all the things needed for the child to have a good stable life. Also, you should also consider the child’s best interests. You may hate your former partner, but if the partner has always been the primary caregiver and done a good job as a parent consider not having a custody battle. It is much easier for an attorney to argue for expanded visitation for the secondary parent than argue for primary custody.
When I started 30 years ago, it was rare for a father to gain custody, and you would pretty much have to show that the mother was a trainwreck. Today with both parents working full-time, often the father is the primary caregiver of the child. If that is the case, be prepared to show that you are the primary caregiver and that the child’s life would be better in your custody.