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Fault in the context of child custody determinations

by | Jan 26, 2016 | Divorce

Typically, we think of fault as not being a factor when it comes to divorce, but as we’ve been exploring, there are certain instances where it can factor in, infrequent as they are.

In addition to the rare cases where fault can factor into property division, fault-based considerations can come into play for purposes of child custody determinations. The primary consideration in child custody disputes is the best interests of the child rather than any the faults of the parents. Obviously, though, the faults of the parents are very relevant to what custody arrangement will be best for the health and welfare of a child. 

There are a variety of factors family court judges take into consideration when making custody decisions. These include more or less neutral factors like the mental and physical health of the parents, the child’s relationship with siblings and other family members and the work schedules of the parents. In addition to these factors, though courts may also consider factors involving the question of fault.

The occurrence of physical or sexual abuse of the other parent or the child is obviously very important fault-based factors judges will consider.  Each parent’s willingness to promote a healthy relationship with the other parent will also be considered. When a parent demonstrates unwillingness to discontinue bad-mouthing the other parent and refuses to maintain basic decency in the relationship, this can also impact custody decisions. To the extent that personal habits, social life and addictions negatively impact the health, safety and welfare of the child, these will also be taken into consideration. The specific reasons for the failure of the marriage will not be taken into consideration, though, except to the extent that they impact the children.

The bottom line is that while fault is not a consideration in child custody determinations, fault can indirectly impact custody decisions via the consideration of best interests. For parents going through child custody disputes, it is important to work with an experienced attorney to make sure they are fairly represented in court.