Introduction

With divorce on the rise across the United States, child custody issues are also on the rise. In this firm alone, I have dealt with hundreds of divorces that involve custody disputes. Custody issues must be taken seriously at the trial court level because, while custody appeals are possible, trial court judges are allowed broad discretion to make decisions regarding the custody of children. This means, that on appeal, an appellate court will only reluctantly overturn the initial custody decision. Further, the more time that a child has lived in a certain home situation, the more hesitant the courts will be to remove that child from the seemingly stable situation. For this reason, it is important to seek an experienced family law attorney, accustomed to child custody matters, when facing child custody disputes in divorce proceedings.

Legal Standards Applied to Child Custody Issues

At the beginning of the twentieth century, children were usually awarded to their father in the unlikely event that their parents divorced. This was in recognition of the father's "right" to his children's labor and services. Children were considered property. Within the first few decades of the twentieth century, however, the pendulum began to swing the opposite direction and mothers were routinely awarded custody. This was based on the "tender years" doctrine, which professed that children of tender years should be with their mother. Although these absolute rules brought predictability and consistency to divorce proceedings involving children, they often overlooked which parent was better equipped to raise the children and, more importantly, which home situation would provide the optimal situation for the children.
Between the years of 1960 and 1980, the rights of children in custody disputes began to emerge. Courts began appointing guardians ad litem to represent a child's interest during the break up of a marriage. The guardian's job was to ensure that the child's interests were protected when the courts determined which parent should have custody of the children. During this same time period, family courts and judges began to weigh the "best interest" of the children when determining custody and visitation matters. The "best interest" standard is still used by most state courts today when making custody determinations.
Although the "best interest" standard does vary from state to state, some overriding themes are noted in the best interest analysis used by the individual states. These factors include:

1. Wishes of the child, if of an age deemed reasonable for expressing a preference;
2. Mental and physical health of the parents;
3. Religion and/or cultural considerations;
4. Need for continuation of stable home environment;
5. Support and opportunity for interaction with members of extended family of either parent;
6. Interaction and interrelationship with other members of household;
7. Adjustment to school and community;
8. Age and sex of child;
9. Parental use of excessive discipline or emotional abuse; and,
10. Evidence of parental drug, alcohol or sex abuse.

Conclusion