WINNING CUSTODY --
HOW DO JUDGES DECIDE?
Most custody decisions are easy to understand --
The judge orders custody to the parent who wins
the first factor below (which is not a tie):
1. abuse
If one parent is abusive (physically or emotionally),
but the other parent isn't, the non-abuser will win.
This includes parents who may not be abusive
themselves but who expose children to abusers,
such as Mom's boy-friend.
Domestic violence is especially important because
Washington law requires the judge to limit a parent's
residential time if the kid would be exposed to a DV
offender who hasn't been rehabilitated.
2. safety
Does the parent offer a safe environment for the child?
When Mom lives in a gang house, and a rival gang
regularly drives by and shoots through the windows,
but Dad's house is safe, the judge doesn't have to
think very long before ordering custody to Dad.
3. special needs
Some kids have problems that urgently need taking
care of, such as diabetes or ADHD. If one parent is
able and willing to care for the kid, but the other isn't,
the care-taking parent will win.
4. basic needs
A child needs shelter, food, clothing -- and love!
If Dad lives in a house, but Mom lives in her car,
Dad is going to win. Dad will usually win if it's
house vs. apartment.
Mom's lawyer always argues that Mom loves the
kids more than Dad does. Dad's lawyer should never
concede this point, but should instead talk about how
Dad shows his love for his kids, such as by working
hard to earn the money the family needs.
5. parenting skills
This is especially important for very young children.
If Dad doesn't know how to change a diaper, he's
not likely to get custody of a baby.
Parenting skills need to proved; it helps to take
parenting classes and read books on the subject.
6. medical care
Dad should have a pediatrician and a dentist lined
up for the kid, and be able to prove their qualifications.
Other professionals might include orthodontist,
opthalmologist, psychologist, etc.
7. education
Judges know how important a good education is.
Dad's school should be better than Mom's school,
and Dad should be ready and willing to help his
kid, especially with any learning disabilities.
8. step-parent
If Dad has a wife who is a good step-mommy, but
Mom can't offer a good step-daddy, Dad wins.
Parents tend to be more alike than different, so
usually Mom and Dad are tied on most of these
factors. Dad only needs to be slightly better than
Mom on the first factor that isn't tied.
If Mom and Dad are tied on all eight factors, then
Dad's lawyer needs to look hard for a 9th factor,
one that favors Dad.
It's important to remember that there is no "point
spread" in a custody fight; Dad does not have to
win 100-0; winning by a basket at the buzzer is
enough. Dad's lawyer should concede that the
parents are tied in most ways (if this is true), and
instead focus the judge's attention on the factor(s)
that favor Dad -- Dad only needs to be a little
better on one factor in order to win.
Stable living arrangements can be a big factor.
If Dad has been living in the same house for years,
but Mom moves from apartment to apartment, or
if Dad can afford to continue living in the family
home after a divorce (but Mom can't), this can
be decisive for Dad.
Sometimes the child in the case has been living
with and is closely bonded with other children
who are not full-blood relatives and whose custody
is not before the court (usually half-siblings or
step-siblings). In these cases, usually one parent
can continue this close relationship, but the other
can't, and that can be decisive. One variation on
this is when one parent has a lot of relatives who
are close to the kid, but the other doesn't.
Sometimes Mom has had kids with more than one
father, and all the fathers can gang up on her. In
one case, I got the two Dads to rent a big house
and won custody for them of all the kids (in two
parallel cases) by arguing that all the kids should
continue living together.
Mom often wants to move after divorce, sometimes
a long way off, and these moves are usually very
harmful to kids, especially when they're already
traumatized by divorce.
Over the years, I've seen many factors, too many
to list. The bottom line is this: either the custody
winner is obvious (even if the case is close) or
else custody really is a close call, with no clear
winner. When there is no clear winner, the
attorney needs to learn as much as possible
about the child and both parents, and look hard
for a factor which favors his client and which he
can persuade the judge should be decisive.
Some lawyers like to list a lot of little factors that
favor their clients and try to argue that collectively
all these little factors out-weigh one big factor, but
in my experience, judges don't like to weigh factors;
they prefer to identify one decisive factor. When
announcing his/her decision, the judge will talk
about all the factors, but it's usually clear that
one big factor decided the case.
Joshua Foreman
Attorney at Law
voice-mail: (206) 524-5537