Facing down a custody battle to determine who will care for your children is one of the most stressful things a mother can go through. The fear that you may be restricted from seeing your children if you say or do something wrong can leave you feeling paralyzed. If you are worried about how a mother can lose a custody battle, an experienced family law attorney can help.
The factors affecting a custody battle are generally the same for both mothers and fathers. The primary consideration in a custody dispute is the best interests of the child. Although defining the child’s best interests is not easy, the courts tend to look at a handful of factors. In particular, common factors influencing custody decisions include:
- What the parents want,
- What the child wants,
- Which parent has been the primary caregiver,
- How well the parent can care for the child,
- The relationship between the parent and the child,
- Any history of domestic violence or abuse, and
- How willing the parents are to cooperate.
No one factor is determinative. The courts must evaluate the entire situation, weighing the factors against each other.
If you are facing a contentious custody battle, The Gilmer Law Firm, PLLC, can help. We have years of experience helping parents through some of the toughest days of their lives.
What the Parents Want
The courts will always consider what each parent wants to the extent possible. There is a common misconception that mothers are presumed to be entitled to custody, but that is not true. Both parents are equal in the eyes of the law. The court must balance each parent’s rights against the child’s best interests.
What the Child Wants
How much stock the court puts in this factor depends on the age and relative maturity of the child. The court will often ask the child to explain their wants and why. The older the child is, the more they can express themselves. If the child’s reasons do not relate to their best interests, like a child preferring one parent because the parent buys the child gifts constantly, the court will not weigh this factor heavily.
Which Parent Has Been the Primary Caregiver
Awarding custody to the primary caregiver often helps the child maintain a sense of stability during a deeply stressful time for the entire family. The primary caregiver has spent more time with the child, often leading to a different bond and a greater awareness of the child’s needs. If the father has been the primary caretaker, that may be a way a mother can lose a custody battle.
How Well the Parent Can Care for the Child
Several considerations drive how the court evaluates the parent’s ability to care for the child, including the living situation the parent offers, the child’s particular needs, and the parent’s health. It does not matter whether the father makes much more money than the mother, or vice versa, as long as the parent seeking custody can care for the child. Under New York law, both parents must financially support their children until they are 21 years old. The parent not awarded custody will often pay child support, which can help compensate for a custodial parent’s lower income level.
The Parent’s Living Situation
What kind of living environment the child will have with the parent is significant to evaluating their best interests. The court prefers a parent who provides a safe environment with enough space for the child to live comfortably. This means a home free from violence and unnecessary risk. Common home safety issues include drug or alcohol abuse and the frequent presence of strange adults in the home, whether those adults are friends or romantic partners.
Potential disruption to the child’s education and relationships also plays a role. If the child has significant community ties, removing the child from the community may not be in their best interests. The court also considers whether the child has siblings and where they live. The courts prefer to keep siblings together when possible.
The Child’s Needs
The court will also consider any medical or special needs the child has. Being in the care of someone who will ensure the child is cared for physically and emotionally is vital to protect the child’s best interests. That one parent does not understand or is unwilling to meet the child’s physical and emotional needs hurts their case for custody.
The Parent’s Mental and Physical Health
Most of the time, a parent’s disability should and will not factor into custody decisions. However, parents with disabilities that prevent them from providing appropriate care are less favored in custody determinations. This may look like a parent who is physically paralyzed or has a crippling mental health condition. Active addiction to drugs or alcohol is one of the most common health conditions affecting custody arrangements.
The Relationship Between the Parent and the Child
Courts weigh the relationship between the parent and child heavily. Evaluating the strength of any relationship is challenging. How the parent and child view the relationship is important, but it is not the end of the story. A social worker may help the court make this determination by interviewing the parents or visiting the parent and child at home to observe how they interact. The social worker may investigate whether the parent has been present in the child’s life, supports the child, is ever physically abusive or neglectful, and treats the child with respect.
Any History of Domestic Violence or Abuse
A parent with a history of abusing the other parent, another romantic partner, or the child will often have difficulty getting custody. For obvious reasons, being abused or witnessing abuse is never in the child’s best interests. Courts may consider:
- The parent’s domestic-violence-related criminal convictions, if any;
- Whether anyone has ever filed a restraining order against the parent; and
- Whether child protective services has ever concluded the parent abused the child.
The parent or child may also testify to abuse, regardless of whether it has been reported.
How Willing the Parents Are to Cooperate
Each parent has an equal right to raise their children. If one parent is likely to interfere or has interfered with the other parent’s time with the child, that weighs against them. If you believe your co-parent is a threat to your child, you can petition to change the custody arrangement, file for a protective order on behalf of the child, or call emergency services. But you should not act on your own to interfere with the other parent’s rights to the child, such as refusing to send the child for scheduled parent time. Interfering with the child’s time with the other parent is one of the biggest mistakes to avoid in custody battles.
Let Us Fight for You
Located in Brooklyn, NY, the Gilmer Law Firm, PLLC, has a long history of helping mothers face down custody battles. We know and have used many strategies for mothers in custody battles—and fathers, for that matter—to help you fight for the level of custody you want. If you are a parent in a custody battle who is unsure where to turn, contact us today.