The following factors are considered by judges when making decisions about
children. (The explanations have been adapted from Maine Family Law by Jon D.
Levy.)
AGE OF CHILD. Developmental, biological and physical needs vary by
age and must be addressed.
RELATIONSHIP OF CHILD WITH PARENTS AND SIGNIFICANT OTHERS. Each parent
and the parent's home and social life are examined for the impact on the child.
Other parties who may enhance the child's development or who may endanger
the child are also relevant.
PREFERENCE OF THE CHILD. There is no fixed age at which a state preference
is meaningful. Judges consider whether a child understand the effect of stating
a preference and whether parents have been trying to influence a child.
DURATION AND ADEQUACY OF A CHILD'S CURRENT LIVING ARRANGEMENT. Continuity
is important for a child and is weighed against the adequacy of the arrangement
to meet basic needs for shelter, clothing, hygiene and nutrition; another
factor is whether the arrangement assists the child in attaining his or her
fullest potential.
STABILITY OF PROPOSED LIVING ARRANGEMENTS. A stable living arrangement
helps a child make friends and take part in school and other activities, and
it can also enhance feelings of security.
MOTIVATIONS OF THE PARTIES AND THEIR CAPACITIES TO GIVE THE CHILD LOVE
AND AFFECTION. Judges consider whether parents are seeking the best for
their children or whether they might be seeking revenge on the other parent,
avoiding guilt if he or she does not seek custody, or attempting to gain leverage
in momey and property issues.
CHILD'S ADJUSTMENT TO PRESENT ENVIRONMENT. Whether the child has developed
appropriate relationships with adults and peers, exhibits no significant behavioral
difficulties, and performs satisfactorily in school-these are all indicative
of good emotional adjustment.
CAPACITY OF EACH PARENT TO ENCOURAGE CONTACT BETWEEN CHILD AND THE OTHER
PARENT. A parent may not be able to foster a positive relationship because
of feelings of anger, jealousy or hurt. Judges look at each parent's understanding
of the importance of the other parent to the child.
CAPACITY TO COOPERATE IN CHILDCARE. Parents need to develop effective
communication following divorce if they are to share childcare.
KNOWLEDGE OF METHODS FOR RESOLVING DISPUTES AND WILLINGNESS TO USE THOSE
METHODS. Judges consider the parties' abilities to work out their parenting
differences and their willingness to use mediation, counseling, or other dispute
resolution means before resorting to litigation.
EFFECT ON A CHILD IF ONE PARENT HAS SOLE AUTHORITY. Courts recognize
that joint parenting can be beneficial for a child but that continuing fights
and competition between parents is harmful. When conflict is too high, judges
may select one parent to have sole or primary authority in order to shield
a child from conflict.
HISTORY OF DOMESTIC ABUSE. Judges consider whether there has been
a history of domestic abuse between the parents, how recent that history has
been, how severe it was, and whether it is ongoing. They try to evaluate the
effects on the safety, as well as the emotional well-being, of the child.
HISTORY OF ANY CHILD ABUSE BY A PARENT. Again, judges consider how
recent the history is, how severe it was, and how it may affect the child's
relationship with the parents.
ANY MISUSE OF THE PROTECTION-FROM-ABUSE PROCESS. The law is clear
that judges are required to take it into consideration if either party has
filed a Protection from Abuse action in order to gain tactical advantage in
a proceeding involving the determination of parental rights and responsibilities.
This is especially true if it demonstrates that one of the parents might have
lessened ability and willingness to cooperate and work with the other parent
in meeting their shared responsibilities for the child.
It should be noted that judges are prohibited by law from applying a preference
for one parent over the other because of that parent's gender or the child's
age or gender.
