Custody in Divorce

In the divorce proceedings, one of the most common issues over which the parties have disagreement on is the custody of the child. In its decision, there are a number of situations in which the Court consider and which are stated in clause 30 (a) of Family Law No. 1/1998 such as the child's age, physical health, mental state, physical and psychological needs, physical health and mental state of the mother and father. As it is evident from this clause, the basic focus of consideration is the child's best interests. The decision as to who will have custody depends entirely on the interests of the child.

How is custody decided in a divorce?

When the parties involved in a divorce cannot agree on the issue of child’s custody, there are laws that set forth the factors the judge must consider when determining custody. A lot of parents go into a child custody hearing with the intention of seeking sole custody. For some parents, this is because they believe that the other parent is unfit to raise their child. Others would prefer to have sole custody for other reasons.

For example, one of the spouses can argue that it would be better for the child to continue living in the same house following the divorce in order to avoid disruption of the childs education as this will be in the best interest of the child and the child’s need for mother’s affection is also among the reasons for custody that can be claimed. In cases where both parents seek custody, the judge may conduct investigations and, where he/she deems necessary, receive assistance from the Social Services Department.

In order for the judge to render a custody decision based on the best interests of the child, the Court will take into consideration the childs developmental needs, the opinion of the Social Services Department in relation to the school, home and social environment in which the child will be living, the child's well-being and health.

In order to determine the custody of a seven-year-old child or a child older than seven years of age, the Court will take the opinion of an expert child psychiatrist or a psychologist from a public health institution into consideration. In view of these considerations, the Court will give priority to the child's views in connection to the custody bearing in mind the child's age and level of maturity to understand the decision made in respect of the custody.

Can the party who did not receive the custody of the child apply for custody to the Court later?

The general assumption in most child custody cases is that the judgment is never final, and that future changes in circumstances could always warrant making changes in the custody arrangement. In order for a Court to change a child custody arrangement, usually one or both of the parents must show a change in circumstances that affects the interests of the child. This could mean everything from a parent moving, a parent getting extremely sick, a parent finding a job or the child's changing needs for example, from early years maternal compassion. In regards to custody proceedings just like the case of divorce process, the main element is the decision to be in the best interest of the child.

When One Parent is Granted Custody, What happens Then?

The Court will take into consideration all the relevant factors and decide on a timetable according to which the other parent will have the right to see his/her child privately.