Factors court considers in cases of child custody

Sexual relationships between men and women, sometimes, result into children. When these relationships don’t work out, the custody of those children usually becomes an issue. It is at this point when the parents enter into a co-parenting agreement, agreeing on who has custody and on the terms of access to the child by either parent. When negotiation on those terms is not an option, either of the parents may approach the children’s court seeking orders for custody of the child.

What should not be forgotten even when an application for custody of the chid(ren) has been lodged is that parental responsibility is joint and equal. This is a constitutional, statutory and social principle. Each parent has a right to have the custody of their child. However, that right may be limited if it is not in the best interest of the child.

The best interest of the child is the yardstick for all decisions that the children’s court makes. So, to get custody, circumstances in the best interest of the child must fall on your side.

Custody can be sole or joint. Sole custody is when one parent is given both the legal and physical custody of the child. Joint custody is when both parents are given the legal and physical custody of the child. Legal custody means that both parents have a joint responsibility to make major decisions regarding the child’s education, health and general well-being.

Here below are some of the factors which the children’s court considers when determining who should have custody of the child.

  1. The safety of the child and the safety of either parent from physical abuse by the other parent.
  2. The ascertainable needs of the child.
  3. The age and number of children.
  4. The quality and continuity of the child’s education.
  5. The interactions and relationship of the child with its parents and siblings.
  6. The extent and quality of the time spent with child prior to or after the separation
  7. The preference of the child if the child is of sufficient age and capacity to reason to make an intelligent decision.
  8. The financial capability of the parents to take care of the child.
  9. The parents’ willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse.
  10. The stability of the home environment offered.
  11. Any history of domestic violence.
  12. The parents’ ability to agree, communicate and cooperate in matters relating to the child.

It is important to remember that the children’s court is not a place for parents to fight their personal battles, but it is a place where everything is about the child.

If parents can remember that a court determination on the custody of the child is not about them, but the child, then it would be easier than it usually is.

For the parent who may not get custody, the law makes provision for access to he child. Every parent has the right to interact with their child, even if the interaction is to be subject to supervision. Access to the child may be in the form of play dates, talking on the phone, giving gifts, exchanging letters and such other things. It is unfair to a child to limit their access to the other parent. Interaction with both parents is important for the child’s general well-being and good growth.

Remember, every case is judged according to its facts. Whereas the above is general knowledge, your circumstances may be quite different. It is therefore important that you call us so that we give a professional opinion, on your facts.


his article appears in our law newsletter Vol 11 Issue 4 of November 24th, 2017. To receive The Deuteronomy in real time, click HERE

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