Child Custody and Support

The majority (an estimated 90%) of custody cases are settled according to parents' wishes. The court will accept whatever parents agree on. This process has been criticized because it does not necessarily ensure the child's best interest. Critics point out that this procedure may be especially harmful to children if violence exists in the family; the terms of the agreement may not necessarily be fair but may be coerced and may prolong the child's exposure to violence. When parents cannot agree, the court tries to evaluate the best interests of the child, considering the following factors:

• The parent-child relationship. It has been recommended that young children be placed with their "primary caregiver" to minimize disruption for the child. Fathers have protested that this standard favors mothers. In response, supporters of this standard have suggested that it provides an incentive for fathers to be involved in their children's upbringing from the beginning.
• The wishes of the child. Whether to consider the wishes of the child is controversial and varies from state to state. There is a concern that children may not know what is in their best interests and may even pick the worst parent just because he or she is more permissive. A further concern is that letting the child choose will induce guilt feelings in the child later on.
• Parents' mental and physical health. These should be relevant only if they affect child rearing. Courts may also consider the child's age and gender and any special needs the child may have.
• Lifestyle and conduct of parents. These factors are considered only if they affect the child (e.g., parents' substance abuse, child's exposure to secondhand smoke). Courts have moved away from considering parents' sexual behavior, unless it can be shown that a parent's activities have a negative impact on the child. If neither parent is fit to have custody of the child the court may award custody to a third party (e.g., relatives or foster parents).
• Parents' ability to provide adequately for the child. Courts take into account each parent's ability to provide such necessities as food, clothing, and medical care.
• Continuity with the primary caregiver, the other parent, and with home, schools, and community. To promote continuity, courts may favor the parent who is more likely to allow the nonresidential parent access to the child.

Critics point out that the best interests of the child standard is so imprecise that it promotes conflict between divorcing parents and judicial bias and arbitrariness in decision making. "Judicial discretion" entitles judges to consider all, some, or none of the factors, or they may weigh them according to their own personal values and views.