Initial Custody Determination 

An initial custody determination is typically made as a part of a divorce or paternity lawsuit. However, if the parents were never married and paternity has already been establish by an affidavit of parentage or prior judicial determination then a separate custody lawsuit can be filed to resolve custody and parenting time disputes. 

There is legal custody—the decision-making part of raising the child—and physical custody—who physically raises the child. Sole or joint custody is possible for both of these types of custody.The basis for determining child custody is “the best interests of the child.” Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your attorney at Heckler Law Office. 

A court must decided custody by considering and weighting all of the following factors:

  1. The love, affection, and other emotional ties existing between the parties involved and the child.
  2. The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in its religion or creed, if any.
  3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of the medical care, and other material needs.
  4. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
  5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
  6. The moral fitness of the parties involved.
  7. The mental and physical health of the parties involved.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
  10. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
  11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
  12. Any other factor considered by the court to be relevant to a particular child custody dispute.

It should be remembered that the child’s preference, although an important factor, is just one factor to be considered of the
twelve factors listed above; and it is not in the child’s best interests to try and convince a child to have a preference by promises or threats or to discuss the custody dispute with the child.

Modifying an Existing Custody Order 

Child custody orders are modifiable. However, there must be a change in circumstances or good cause for custody to be reconsidered. If this threshold is met, the court will determine if the child has an established custodial environment with one or both parents. If the court determines that there is no established custodial environment with the moving party, then he or she must prove that the requested change in custody is in the best interest of the child by clear and convincing evidence. Otherwise, the burden of proof is by a preponderance of the evidence.