Judicial discretion in custody determinations and the need for strong advocacy, P.2

In our last post, we began looking at the issue of judicial discretion in child custody cases, specifically as it plays out in the consideration of the best interests of the child standard. As we noted, courts consider a wide variety of factors when in determining what custody arrangement is in the best interests of the child.

Joint custody is certainly not appropriate in every case, but sometimes it is. As in other potential custody arrangements, the best interests of the child is still the central consideration when considering the possibility of joint custody. Many of the factors mentioned last time will also be applicable for joint custody, though case law is a bit more precise with the factors in such cases.

The first and most important consideration with joint custody is the ability of the parents to communicate effectively with one another and to reach shared decisions about the child’s well being. Also of great importance is the willingness of the parents to share custody, the fitness of the parents, and the relationship each parent has with the child. A variety of other factors of lesser importance are considered in such cases as well, but parents who are deemed not to have the ability to effectively communicate or the willingness to cooperate with one another in a joint custody arrangement are not as likely to be awarded a joint custody arrangement.

One of the reasons judges have so much discretion in child custody determinations is that every family has a different set of circumstances. Determining what is best for a child is an inherently difficult matter, and there is always a certain amount of subjectivity in the process. Effective advocacy for a parent in child custody cases is always centered on what is best for the child, but because some of the factors to be considered involve the qualities, characteristics and circumstances of the parents, it is important for parents to ensure the court has accurate and complete information. This is particularly important in contentious cases where there are false allegations or mischaracterizations of a parent.