Custody refers to the "legal right to keep, control, guard, care for and preserve a child". In all types of custody matters (shared physical, primary physical, partial physical, supervised physical, shared legal, and sole legal), the court will consider all relevant factors to determine which situation would be the safest for the child. These 16 factors include:
1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
2. The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
2.1. The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).
3. The parental duties performed by each party on behalf of the child.
4. The need for stability and continuity in the child's education, family life and community life.
5. The availability of extended family.
6. The child's sibling relationships.
7. The well-reasoned preference of the child, based on the child's maturity and judgement.
8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
9. Which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child adequate for the child's emotional needs.
10. Which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child.
11. The proximity of the residences of the parties.
12. Each party's availability to care for the child or ability to make appropriate child-care arrangements.
13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
14. The history of drug or alcohol abuse of a party or member of a party's household.
15. The mental and physical condition of a party or member of a party's household.
16. Any other relevant factor.
A judge will look at these factors to help decide what is in the best interest of the child, since that is what's most important (including above the best interest of the adults). Contact between a parent and child is rarely disallowed, even when one parent is incarcerated. This factor will be taken into consideration (under #16) but ultimately a child is allowed to have contact with each parent unless there is a severe threat to their safety, but they will never be sheltered from the reality of their parents lives, no matter what situation the parent may be in.
For any questions, or a free consultation, please contact us at the Beroes Law Center.