top of page
  • Writer's pictureKyle Persaud

What Judges Look for in Child Custody Cases

Updated: Jun 23, 2021

  • Judges look out for the best interests of the child

  • Judges like parents to settle cases out of court

  • Judges usually want the child to spend as much time with both parents as possible

  • Judges want parents to cooperate with each other

  • Judges look to see if you have certain criminal convictions, and in these cases, you won’t get custody

  • Judges may consider the child’s preference

If you have a child custody case, you’re probably wondering: What do judges look for in child custody cases?

Every child custody case is different, and every judge is different. Nevertheless, there are certain factors that most judges will take into consideration.

1. Best Interests of the Child

The overriding consideration, in child custody cases, is the best interests of the child.

In awarding the custody of a minor unmarried child or in appointing a general guardian for said child, the court shall consider what appears to be in the best interests of the physical and mental and moral welfare of the child.

2. Judges prefer that parents settle cases out of court rather than argue cases in court.

Among judges and family lawyers, there is a widespread perception that parents who cannot settle custody cases out of court are crazy. This perception is not entirely wrong: in many of my custody cases (as well as the cases of many lawyers I know) the parents who failed to settle out of court, failed to settle because either one parent or both parents were obsessed with an entirely irrelevant point. Often, parents who refuse to settle will refuse to settle because one parent cannot bear the idea of letting the other parent have their way.

Also, if you can’t settle out of court, and argue your case in court, your judge will likely have never met you, the other parent, or the child. Because the judge doesn’t know you or the child, there’s a good chance that the judge will make a poor decision as to custody and visitation. I know judges who will readily tell you this.

Another reason that judges prefer that you settle your case out of court is that it’s a long, grueling, and dull task for a judge to sit on the bench and watch parents and their lawyers spew vitriol at each other for several hours. Judges hate to do this. (You’d also probably hate to sit on a bench for several hours and listen to parents bash each other.) Many courts have very crowded, busy dockets, and judges are grateful if you don’t take up more of their time just because you hate your ex-spouse.

3. Judges generally prefer that the child be given as much time with each parent as possible.

Unless one parent is abusive or unfit (see more about this below) the judge will want the child to spend a great deal of time with both parents.

4. Judges prefer that parents cooperate with each other.

A number of studies have shown that when there is a great deal of acrimony and fighting between divorced or separated parents, this fighting causes significant harm to the child for many years to come. (For an example of one such study, click here.)

Sometimes, a judge will grant custody to the parent who the judge perceives to be more cooperative. If you do not cooperate with the other parent, you could lose custody.

5. Some criminal convictions will disqualify you from gaining custody.

There are a number of crimes where “a court shall not award custody or guardianship of a child to any person who has been convicted” of the crime. Most of these crimes have to do with child abuse. To see a list of criminal convictions which will cause you to lose custody, click here and scroll down to paragraph D.

If a parent possesses one or more specific characteristics, there is a “rebuttable presumption” that the parent is unfit. For example, if the parent has been convicted of certain crimes or is living with a person convicted of those crimes, there is a rebuttable presumption that a parent is unfit. There is also a rebuttable presumption that a parent is unfit if the parent is alcohol- or drug-dependent and can be reasonably expected to inflict serious harm on himself or another person.

For a list of the characteristics which raise a rebuttable presumption that a parent is unfit, click here and scroll down to paragraph C.

Because there is a rebuttable presumption that a drug-dependent parent is unfit, a court may order parents to take drug tests in custody cases. If you have a license to use medical marijuana, a court may not deny you custody or parenting time with a child based on your marijuana use, “unless [your] behavior creates an unreasonable danger to the safety of the minor.”

6. If the child is mature enough, the judge may take the child’s preference into account.

In any child custody case, the court “may” allow the child to express a preference. If the child “is of a sufficient age to form an intelligent preference” the court “shall consider” the child’s preference. If a child is over the age of twelve, there is a rebuttable presumption that the child is of sufficient age to form an intelligent preference.

The law says that the court “shall consider” the child’s preference if the child is of sufficient age to form an intelligent preference; however, the law does not say that the court must follow the child’s preference. As long as the child is under eighteen, the court may reject the child’s preference.

For further information about how a judge considers a child’s preference, read the state law here, and read my blog post here.

Judges and Attorneys Suggest Settling Out of Court

In addition, a judge can consider just about anything he wants in a custody case. Therefore, custody cases are very uncertain because you don’t know what a judge might consider important.

Because of this, it’s usually a good idea to settle your custody cases out of court. Many cases settle in mediation. For more about mediation, read my post here.

Some lawyers are eager to settle cases out of court. Other lawyers, however, like to go to trial and slug it out. If you hire any attorney for a family law case, you should ask the lawyer if he will try to settle out of court. Don’t choose a lawyer who will push you to go to trial if you don’t have to.

The Persaud Law Office is committed to settling your case without trial, and most of our custody cases have settled out of court. If you’d like to schedule a free consultation, contact us today.



bottom of page