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Am Jur 2d - Divorce and Separation § 849

IV. Child Custody and Support; Visitation Rights, A. Child Custody; Visitation Rights, 2. Factors in Determining Custody, § 849 - Generally

In divorce proceedings, the "best interests" of the child is a proper and feasible criterion for making a decision as to which of the two parents will be accorded custody of the child.[1] The Uniform Marriage and Divorce Act provides that the court must determine child custody in accordance with the "best interest" of the child.[2] Under a statute governing child custody decisions in divorce actions, the enumerated factors for determining the best interests of the child are nonmandatory,[3] nonexhaustive,[4] and nonexclusive.[5] In performing a best interests of the child analysis, the court must satisfy itself that it is possessed of sufficient facts to support its determination.[6] In determining the best interests of the child, the court is to consider all relevant factors,[7] and a judge has broad discretion to consider any factor that bears on the child's best interests.[8] In making this determination, the court must consider all relevant factors, including:

  • the wishes of the child's parents[9]

  • the wishes of the child[10]

  • the interaction and interrelationship of the child with his or her parents, siblings, and other persons who may significantly affect the child's best interests[11]

  • the child's adjustment to his or her home, school, and community[12]

  • the mental and physical health of all individuals involved[13]

Issues which may also be considered include the relative financial condition of the parents,[14] and which parent has been the primary caretaker during the marriage[15] or is the more nurturing parent.[16]

The court must not consider conduct of a proposed custodian that does not affect his or her relationship to the child.[17] Between parents adversely claiming custody, neither may be preferred over the other,[18] and the gender of the respective parents is irrelevant in awarding custody.[19]


Before custody of a child can be awarded to a parent with whom the child has never resided or with whom the child has never developed a relationship, evidence must be adduced from which the trial court can determine whether such an award is in the child's best interest; desires of the parent are not the paramount consideration. M.F. v. W.W., 144 So. 3d 366 (Ala. Civ. App. 2013) .

Trial court in divorce proceeding did not abuse its discretion in selecting husband as the primary custodial parent who would have final decision-making authority on all matters involving the children, including the school they attended, membership in organizations, and other extracurricular activities; husband wanted children to attend private school in which they had been enrolled for years while wife wanted children to attend a school in a neighboring county and, thus, it was unlikely they would agree on the issues, thereby warranting designation of a final decision-maker. Rembert v. Rembert, 285 Ga. 260, 674 S.E.2d 892 (2009) .

When the trial court's decisions affect children, the best interests of the child is the primary consideration. Suter v. Biggers, 337 P.3d 1271 (Idaho 2014) .

Trial court properly applied the best interests of the child standard to each child involved in postdissolution child custody dispute; contrary to mother's assertions, trial court did not fail to address medical expert's concerns about the transfer of the parties' daughter to father's care, and specifically found that the risk of harm to the daughter's mental health was greater if she remained in her mother's care than if she was transferred to her father's care. Ky. Rev. Stat. Ann. § 403.340(3) . Addison v. Addison, 463 S.W.3d 755 (Ky. 2015) .

Statute providing for consideration of best interests of child does not, on its own, include a requirement to make findings of fact on custodial issues; overruling Hollon v. Hollon, 623 S.W.2d 898 . KRS 403.270 . Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011) .

District court in marital dissolution action adequately addressed the best-interest custody factor of child's adjustment to home, school, and community and its findings were supported by the record, where the court found that child was still at a young enough age as to be resilient and adjust in a healthy way to the separation of her parents and her new current living environment, and that child had not displayed any significant adjustment issues with her current schedule of alternating between wife's home and husband's home. M.S.A. § 518.17(1)(a)(6). In re Kremer v. Kremer, 827 N.W.2d 454 (Minn. Ct. App. 2013) .

In addition to factors listed in child custody statute relating to best interests of child, a court making a child custody determination may consider the following additional factors: moral fitness of parents, including parents' sexual conduct; respective environments offered by each parent; emotional relationship between child and parents; age, sex, and health of child and parents; effect on child as result of continuing or disrupting existing relationship; attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of child; child's preferential desire regarding custody if child is of sufficient age of comprehension, regardless of chronological age, and when such child's preference is based on sound reasons; and general health, welfare, and social behavior of child. Neb. Rev. Stat. § 43-2923(6) . State on behalf of Dawn M. v. Jerrod M., 22 Neb. App. 835, 861 N.W.2d 755 (2015) .

Family Court properly concluded that parents' relationship was so acrimonious that it effectively precluded joint decision making and properly determined that it was in best interests of parties' child to award sole custody to mother, with the father retaining significant visitation rights. Arndt v. Arndt, 100 A.D.3d 879, 954 N.Y.S.2d 196 (2d Dep't 2012) .

Relevant issue in initial custody determination was whether it was in best interests of child to reside primarily with mother or father, rather than whether mother's move was in best interests of child, and thus mother's relocation was not proper basis upon which to award primary physical custody to father, inasmuch as child would need to travel between parties' two residences regardless of which parent was awarded primary physical custody. Saperston v. Holdaway, 93 A.D.3d 1271, 940 N.Y.S.2d 728 (4th Dep't 2012) .

District court must award primary residential responsibility to the party who will best promote the child's best interests and welfare. NDCC 14–09–06.2 . Mowan v. Berg, 2015 ND 95, 862 N.W.2d 523 (N.D. 2015) .

A district court need not make separate findings for each statutory "best interest of the child" factor in awarding primary residential responsibility for a child, but the court's findings of fact must be stated with sufficient specificity to enable a reviewing court to understand the factual basis for the court's decision. NDCC 14–09–06.2(1) . In re S.R.L., 2013 ND 32, 827 N.W.2d 324 (N.D. 2013) .

Trial court's finding that moral fitness factor for determining best interests of child favored giving custody to wife was not clearly erroneous, although husband alleged that wife purposely cut off children's contact with him, took children during his parenting time, and withheld information from him, dropped him from family health insurance while divorce was pending, cashed an IRA worth $20,000 and placed the money in her sister's account, and did not know where $2,000 out of a $7,000 401(k) loan went; trial court could conclude that only moral fitness issue was husband turning children against wife which called into question his sense of morality and of right and wrong. NDCC 14–09–06.2(1)(f) (2008). Wolt v. Wolt, 2010 ND 26, 778 N.W.2d 786 (N.D. 2010) .

Order splitting custody of three children, to allow youngest child to reside with wife while the two older children resided with husband, was not clearly erroneous; the children were together Monday and Tuesday evenings at husband's home and Wednesday and Thursday evenings at wife's home, each parent received visitation with the children every other weekend, youngest child preferred living with wife while the older children preferred living with husband, and the youngest child did not share the same interests as the older children. Dronen v. Dronen, 2009 ND 70, 764 N.W.2d 675 (N.D. 2009) .

The best interests of the child do not exist in a legal vacuum in which parental rights have no weight in determining physical custody; the child's interests must be determined in conjunction with mother's fundamental constitutional right to the care and custody of her child. Murrell v. Cox, 2009 OK 93, 226 P.3d 692 (Okla. 2009) .

In child custody case, trial court may, but is not required to, consider the following Fuerstenberg factors in determining the best interests and welfare of the child, and trial courts should take a balanced and systematic approach when applying the factors relevant to a child custody proceeding: parental fitness, stability, primary caretaker, child's preference, harmful parental misconduct, separating siblings, and substantial change of circumstances. Severson v. Hutchinson, 2013 SD 70, 838 N.W.2d 72 (S.D. 2013) .

Courts should determine a child's principal residence, for purposes of statute governing general standing to file suit affecting parent-child relationship, by looking at the following factors: (1) whether the child has a fixed place of abode within the possession of the party, (2) occupied or intended to be occupied consistently over a substantial period of time, and (3) which is permanent rather than temporary. In re Kelso, 266 S.W.3d 586 (Tex. App. Fort Worth 2008) .

Evidence was sufficient to establish that the statutory child custody factor addressing the quality of the child's adjustment to the child's present housing, school, community, and the potential effect of any change, weighed in favor of husband who maintained residence in Vermont, as opposed to wife who had relocated to Washington D.C. to attend law school, in divorce action in which husband was awarded primary parental rights and responsibilities; husband introduced evidence of a more structured work schedule, with a more available group of family members who resided in Vermont. 15 V.S.A. § 665(b)(4) . Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 70 A.3d 1036 (Vt. 2013) .

In determining custody in the best interest of a child, evidence of spousal abuse is only one of the factors district courts are required to consider; thus, evidence of spousal abuse or child abuse must be considered along with all of the other factors. West's Wyo.Stat.Ann. § 20–2–201(c) . Zupan v. Zupan, 2010 WY 59, 230 P.3d 329 (Wyo. 2010) .

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1   Chatfield v. Adkins-Chatfield, 282 Ga. 190, 646 S.E.2d 247 (2007) (foremost consideration); Hopper v. Hopper, 144 Idaho 624, 167 P.3d 761 (2007) (paramount importance); Floyd v. Floyd, 949 So. 2d 26 (Miss. 2007) (polestar consideration); Marquez v. Caudill, 376 S.C. 229, 656 S.E.2d 737 (2008) (primary and controlling consideration).
 When both parents are found to be fit, the inquiry for the court is the best interests of the children. Maska v. Maska, 274 Neb. 629, 742 N.W.2d 492 (2007) .

2   Unif. Marriage and Divorce Act § 402 (1970).

3   Nelson v. Nelson, 144 Idaho 710, 170 P.3d 375 (2007) .

4   Nelson v. Nelson, 144 Idaho 710, 170 P.3d 375 (2007) .

5   Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008) .

6   Eickbush v. Eickbush, 2007 WY 179, 171 P.3d 509 (Wyo. 2007) .

7   Baxendale v. Raich, 878 N.E.2d 1252 (Ind. 2008) .

8   A.H. v. M.P., 447 Mass. 828, 857 N.E.2d 1061 (2006) .

9   Unif. Marriage and Divorce Act § 402(1) (1970).
 Parents enjoy a fundamental right to make decisions concerning the custody of their children. In re Chambless, 257 S.W.3d 698 (Tex. 2008) .

10   Unif. Marriage and Divorce Act § 402(2) (1970).
 As to the child's preference between parents, see § 850 .

11   Unif. Marriage and Divorce Act § 402(3) (1970).

12   Unif. Marriage and Divorce Act § 402(4) (1970).
 The trial court finding that the statutory best interest factor that analyzed the length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity favored the husband was not clearly erroneous; the husband resided in a mobile home that had been the family home before the parties separated, the children benefited a great deal from their association with students, administration, and teachers at the school they attended while living in the family home, and special education teachers for the son testified that familiarity, routine, and nonfluctuating schedules were extremely important to the autistic son. Burns v. Burns, 2007 ND 134, 737 N.W.2d 243 (N.D. 2007) .

13   Unif. Marriage and Divorce Act § 402(5) (1970).
 The trial court did not abuse its discretion by granting sole legal and physical custody of the children to the wife; the record showed that the children were thriving in the wife's care, that the husband had at times created "chaos" not only in the life of the wife but in the lives of the children, that there were long periods in the marriage when the wife shouldered the burden of caring for the children and made the children accessible to the husband, and that the husband had a history of mental depression. Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008) .

14   Salk v. Salk, 89 Misc. 2d 883, 393 N.Y.S.2d 841 (Sup 1975) , judgment aff'd, 53 A.D.2d 558, 385 N.Y.S.2d 1015 (1st Dep't 1976) ; State ex rel. Hannon v. Eisler, 270 Wis. 469, 71 N.W.2d 376 (1955) .

15   Blanton v. Yourkowski, 180 P.3d 948 (Alaska 2008) ; Lafont v. Rouviere, 283 Ga. 60, 656 S.E.2d 522 (2008) ; Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008) .
 The "primary caretaker" factor, which is considered by the court in resolving custody disputes, determines the person most committed and involved in parenting the child and is also a fair indicator of which parent has been more responsible to the child in the past; the court must consider who was more devoted to the child before the custodial dispute arose. Price v. Price, 2000 SD 64, 611 N.W.2d 425 (S.D. 2000) .

16   In re Marriage of Taraghi and Spanke-Taraghi, 159 Or. App. 480, 977 P.2d 453 (1999) .

17   Unif. Marriage and Divorce Act § 402 (1970).

18   Berger v. Van Winsen, 2007 SD 127, 743 N.W.2d 136 (S.D. 2007) .

19   In re Marriage of Murphy, 592 N.W.2d 681 (Iowa 1999) .

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