Boise Divorce Attorney Discusses How Child Custody is Determined

I'm sure you have heard friends talk about their divorces and how they couldn't tell what was going on as far a child custody. As a Boise Divorce Attorney I can tell you that child custody isn't determined on the whim of the judge. There is a very specific set of circumstances that are evaluated to determine the "best interest" of a child. Idaho Code section 32-717 outlines these factors. It states that the court shall consider all relevant factors in a child custody determination including the ones it outlines.

Firstly, the court is directed to consider the wishes of the parents as to custody. Very rarely are parents in agreement on what that arrangement should be. This is why the court doesn't stop there. The second factor is the wishes of the child or children. This is an option that is addressed primarily when the children are older. A child under seven is very rarely able to express with a degree of certainty which parent they would like to spend the majority of their time with. A child of this age doesn't understand permanence in a way that they can actually add valuable input for the judge. A related factor is the character and the circumstances of all the individuals involved. It used to be that it was thought that the best interest of the child meant to be placed with the mother because mothers are more sensitive and caring toward children. The court in the passed 25 years has acknowledged that it is not unheard of for fathers to be more stable, have better character and in a better set of circumstances to parent the children. The best interest idea shifted because courts began to look at this specific criteria.

Beyond the wishes of the parties and the children, to determine child custody the judge will look at the interaction of the parties with each other, the children and any siblings. The court looks at these to determine if the children will be placed together with specific parents or if they will alternate. Children's relationships with their siblings are very important and if they have a strong bond with each other the court does not want to disturb this. This also applies with step siblings. The court will look at the visitation schedules of step siblings where there is a very strong bond between step siblings to ensure that their time together is not disrupted.

The fourth and fifth factors go hand in hand. The court will look at the child's adjustment to his or her home, school and community and from there the court will seek to promote this continuity and stability for the child. Divorce disrupts a child's life and so this is a critical factor. Parents often move after divorce, the children change schools and even communities. If one parent resides in the family home and the children can remain in their historical schools and communities the court will weigh this very heavily as to maintain the stability.

The court will also look at any record of domestic violence. This, can rise to the level where it is a superseding factor. If one parent lives in the family home where the stability of the child may be maintained but is or has been abusive to the other parent, the abuse will be considered a factor against the offending parent. One thing to keep in mind, however, as a Boise Divorce Attorney I often see the domestic violence card played and often it is played as a tactic against the other party. I am in no way belittling the importance of filing dv when it is necessary, I just want to point out that it can be used as an attempt to cloud the court's opinion.

As a Boise Divorce attorney I have seen another tactic that divorcing parents often will try to use against each other; parties will claim that one parent is disabled and therefore they are unfit to parent. The Idaho Code has specifically addressed this and has stated that a disability in and of itself will not render a parent unfit. It states that the parent will be evaluated taking into account how they might parent considering how they themselves have adapted with their disability.

Child custody in Idaho is specifically based upon the best interest of the child. The best interest, however, is not based upon the whim of a judge. With the help of the above outlined factors a judge will make his or her decision. The judges can and do weigh other factors, when presented to them, if they believe that they will have an impact on the best interest of the child. However, unless the parties agree, rarely is anyone completely satisfied with the results.