Preparing for divorce requires you to take time to understand the legal and procedural aspects of this type of proceeding. As part of this effort, if you have children, you need basic information about how custody decisions are made during divorce proceedings. Divorce laws differ somewhat from state to state. The basic process for deciding custody matters are similar across the United States.
Standard
In deciding child custody issues, courts across the United States utilize the same standard, known as "what is in the best interests of the child," according to Cornell University Law School. Although the rights of parents in divorce cases are important in resolving custody matters, a court's primary focus always remains what custody arrangement benefits the child.
Considerations
In determining what is in the best interests of a child, a judge considers a number of factors, including the general mental and physical health of the parents and child. A judge looks at the residential situation of both parents, according to Cornell University Law School. She makes an examination of which parent historically provided primary care for the child. Some states permit a judge to consider a child's preference, contingent upon his age, maturity and demonstrated ability to make reasonable decisions.
Misconceptions
A variety of misconceptions exist in how U.S. courts decide child custody cases. For example, a common misconception associated with these types of cases is that the rights of the parents represent the primary consideration in crafting a custody order in a divorce case. In fact, the rights and interests of the child take precedence over those of the parents in these types of cases, according to "The Complete Divorce Handbook: A Practical Guide" by Brette McWhorter Sember.
Mediation
A more frequent part of the process to determine custody in divorce cases is mediation. Some jurisdiction require parents in divorce proceedings to participate in mediation if they cannot reach a settlement of custody issues on their own. Through mediation, a professional mediator meets with the parents and works with them in an effort to resolve custody issues. The mediator does not make custody decisions for the parents. Rather, he facilitates communication and negotiation between them to assist in achieving a settlement of custody issues.
Decree
The final step in a the process of determining custody in a divorce case is the issuance of a decree. The decree incorporates all issues settled by the parties or decided by the judge after a hearing or a trial, including those associated with child custody.
