Child Child Custody Factors The Family Court Cannot Consider
Many parents in contested custody cases are concerned whether the family court will take their side, even with aggressive child custody representation. If you’re in the middle of a custody dispute you may be asking yourself:
what are my chances of being granted custody over my child? what if the family court thinks I am unfit to take care of my child because I earn less? or because of my religion? or sexual orientation?
Several factors affect the outcome in a battle for custody. And yes, if a child’s parents are not on good terms, custody cases can quickly get messy, with each party laying out the other’s dirty laundry. Though everyone hopes to avoid a contentious child custody battle, your child custody attorney will prepare you for all possible scenarios.
Going into your child custody case it’s important to know which factors have no bearing on the family court’s decision. These are factors that, as long as not shown to cause any harm to the child, cannot be used as a basis for denying custody to a parent.
Sex of the Parent
Courts will not give preference in granting custody to a parent based on their sex – male or female. Your chances of being granted custody will never be based on whether you are a man or a woman.
Courts will not determine custody based on race. (Sadly, case law became necessary to correct previous decisions that found the race of a parent to be a factor – See Palmore v Sidoti). The fact that one parent enters into an interracial marriage, despite fears of possible harm to the child because of racial prejudice, will have no bearing in determining custody.
Courts cannot simply rely on a physical disability as sole evidence of a parent’s unfitness or of probable detriment to the child. Just because you use a walker or are wheelchair-bound will not be the sole reason for denying custody.
Religion is an improper basis for denying custody; in other words, religion itself cannot be a factor weighed by the court in its child custody decision unless the religion (or more typically some practice) is shown to cause harm to the child. As shaped by case law, parents may not be prohibited from discussing religion with or involving the child in religious activities.
Income or economic advantage cannot be a basis for awarding custody to either parent as there is no correlation between wealth and good parenting or wealth and happiness. Should the custodial parent’s income be insufficient, child support should be awarded, not removal of custody. In Burchard v. Garay the court reasoned the care provided by a mother who must entrust her child to daycare due to work and studies is not per se inferior to the care given by a father who also works but is able to leave the child with a stepmother.
A parent’s sexual orientation alone does not determine whether a parent’s custody should be denied or visitation limited. It may be a factor to be considered but only insofar as the court finds it relevant. In fact, a court order prohibiting a homosexual parent from overnight visitations with his son with other homosexuals around was vacated in Marriage of Birdsall as there was no showing that it would be detrimental to the child.
In the same way, a parent’s sexual conduct, unless shown to have a significant bearing on the child’s welfare, is irrelevant in awarding custody. Such that the court cannot prohibit custodial parents from having overnight visitors of the opposite sex unless it is shown that the minor children’s welfare is directly placed in jeopardy or that such relations would adversely affect the child’s home environment.