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An Unpleasant Job
Most judges don't like divorces. They involve unhappy people, and nobody wins. Child custody hearings can be even more unpleasant, particularly when there are two parents who love their children and despise each other. Since the first duty of a judge is to know the law and apply it with impartiality, independence and courage, domestic situations, with their relative shadings of "fairness," are especially difficult.
Know the Law
State laws control divorce and child custody, so most judges will review the law and find the parts of it that are relevant to each case. Law is clarified by court decisions, and judges keep current on new decisions by subscribing to a service that publishes new decisions. Each attorney representing a party in the custody battle will draw on new and historic cases, known as "precedent," to advocate in favour of the client.
The first consideration in most state regulations is the best interest of the child. The judge, having heard the divorce case, generally has a pretty good idea of how the parents behave under stress. During a custody hearing, he needs to find out if these impressions are accurate, what special needs the child may have, if there are any situations like abuse or neglect on the part of either parent and if other interested family members such as grandparents, stepparents or adult siblings might be interested in sharing custody or visitation rights.
Gather Good Information
The court asks for input from social service professionals, schools, employers, relatives and friends to get a clearer picture of the world that the child inhabits. Many states allow the child to participate in this process. The judge must sort out the testimony, much of it contradictory, and decide how much weight to give to each piece of input. She will discount any hearsay---testimony by someone who has no direct experience with the person or event being testified to---and any testimony that is inflammatory. Judges know that people exaggerate when they are emotionally involved and tend to discount highly emotional charges unless they can be verified by a disinterested party.
To establish what placement is best for the child, examination of instances or allegations of child abuse or neglect is critical. Other issues, though, may be important. Temperament and parenting skills, home stability and interaction with family members are vital considerations. These considerations will help determine whether custody should be sole or joint and whether or not a parent should be denied visitation rights.
Although the days of statute-mandated award to mothers or natural parents are long gone, there is still a tendency based on social norms. In the end, though, the decision comes down to the best interest of the child, not the status or blood links of the parent. Other factors like a parent's income, size of his home or ability to travel are not nearly important as the psychological and emotional environment that the parent will provide for the child.
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