182 - The 17 Child Custody Factors that a Judge Can Consider

The Court can consider a variety of factors when determining what is in the best interest of a child. In this show, Leh and Todd summarize and explain the 17 child custody factors that are laid out in Georgia’s Child Custody statute.

Leh Meriwether: Welcome, everyone. I'm Leh Meriwether and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. Here, you learn about divorce, family law, and from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. All right, Todd. I got one question for you.

Todd Orston: That's easy. I can do this.

Leh Meriwether: You're ready?

Todd Orston: I'm ready. I feel like I'm on Jeopardy!. I'll take family law for 200.

Leh Meriwether: What is the law that judges follow to determine who gets custody of the child?

Todd Orston: The best interest of the child? All right, I'll talk to you later.

Leh Meriwether: I guess we're done then.

Todd Orston: Am I done here? Do I win the car?

Leh Meriwether: No. What's that mean, Todd?

Todd Orston: Well, best interest of the child, it is a term that means the court has a lot of discretion to determine what it feels would be, are you ready for this, in the child's best interest. Because, look, jokes aside-

Leh Meriwether: It's not enough that I say, "Hey, Judge, it'll be in the child's best interest to be with me, period."

Todd Orston: You win. Done. Thank you. Everyone go home.

Leh Meriwether: That's all I need to say. That's all you do. It's whoever says that first.

Todd Orston: So you have to say it very quickly. And if you get that out first, then you win. No, that's not how it works. When it comes to custody issues, it's not a right or wrong kind of thing. So courts have a lot of discretion. And therefore, and we've actually heard judges say this, "Hey, why don't you go out into the hallway and try and work things out? Otherwise, you're going to force me, the judge, to make decisions about how you raise your child."

Todd Orston: So the court is given wide latitude, a lot of discretion to determine what they think would be the best situation, the best schedule and custody rights and all that, the best thing for a child, the best interest standard. All right. And there is no equation. It's not like you plug it into a calculator like child support in Georgia, and it spits out a number and boom, that's what child support is. You can't do that with custody.

Todd Orston: So the courts have to apply this best interest standard and the law, which the best interest standard has now been adopted country wide. And so that law, there are some governing things that basically, that courts are supposed to look at when determining, what is in the best interest of a child? So the courts, while they have a lot of discretion, the legislature has tried to put some factors in that basically, courts should look at when making that determination.

Leh Meriwether: I'm glad you said that, Todd, because before we get started, we need to get some caveats. First off, we're talking about the law as it stands in Georgia, as of September of 2020. This law is subject to change. In fact, there are proposals that are being circulated to change where the court needs to decide who's going to be primary and secondary here in Georgia again, to there's a presumption of it's in the child's best interest to have 50-50 custody with the parents. So this law could change at any time. So if you're listening to this and it's 2021, you may want to just check. Don't take what we're saying as gospel per se.

Leh Meriwether: And then the secondary thing is to think about ... I'm pulling back a second. I'm glad you said that about the judge. The judges don't want to make these calls. They want parties to work it out for the sake of their children. And that truly, is the best thing is for you and the other parent to develop a great co-parenting relationship. And that's what you need to be focusing on. But we are going to talk about the factors that exist here in Georgia.

Leh Meriwether: So when we say best interest of the child, we are going to talk about the factors that the court can look at that the legislature has suggested, or actually not suggested, saying, here's the factors, Judge, we want you to look at when determining custody. And this is if all else fails, and you've got to have a hearing. So we want to start by saying, we believe in trying to work things out, because that is the best thing for your child or children. But this is what happens if it doesn't?

Todd Orston: That's right. All right. So, why don't we jump in and start talking about some of these factors? All right. Look, the purpose of this show, we're not just going to read the law. All right. Because we have people who listen not just in Georgia, but elsewhere. So again, we're using the Georgia law as the foundation for this discussion.

Todd Orston: But please, please, please, building on what Leh was saying, you need to look to the law in your jurisdiction, in your state, because there are going to be sometimes dramatic differences, sometimes subtle, but there are going to be differences. So you need to understand the law in your state.

Todd Orston: But this is not a show where we're just reading the law in Georgia. We are basically interpreting and talking about the things that courts are going to be looking at and considering when presented with this kind of a custody case.

Leh Meriwether: So now that you've said, that I'm not reading the law to you? All right. No, actually, we are going to read what the part of the statute says, but we're going to break it down and say what that really means. Because I literally have seen lawyers take this and lay out the whole statute and just lay out why their clients should win by applying certain facts to these things.

Leh Meriwether: So the first one is, well, it says, "In determining the best interest of the child, the judge may consider any relevant factor," so that's important, "Any relevant factor, including but not limited to." So we're going to give you factors that the legislature has laid out, but the judge can look beyond these factors as well. So the first one is the love, affection, bonding and emotional ties between each parent and the child.

Todd Orston: Right. So ...

Leh Meriwether: And let me toss the second one in there. Let's analyze these together. The love, affection, bonding and emotional ties between the child and his or her siblings, half siblings and step siblings, and the resonance of such other children.

Todd Orston: So ...

Leh Meriwether: What's that mean?

Todd Orston: Bottom line, how tied to the home of one parent over the other is the child? Does the child have basically, a strong connection? Does the child receive that love and affection? Does the child have that bond, and are the emotional ties existent in each home? So in other words, in the last show, we talked about a legitimation case where somebody had not had contact for three and a half years. All right.

Todd Orston: Well, I'm not going to question whether that parent loves their child. I can question after three years of no contact, but is there a bond? No, there's not a strong bond. [crosstalk 00:08:11] If there are other children in ... right. So if there are other children, step siblings or half siblings, or whatever the case may be, that the child in question has not had any contact with is clearly not a strong emotional tie or bond with those siblings.

Todd Orston: So the court is going to look. And so if two parties are saying, "I want primary custody," and in one home, there is, let's say, a step sibling that every day, they are together and they are the same age and they clearly get along very well, and in the other house, let's say, the child in question is eight years old, in the other house there's a 16 year-old, is a step sibling that wants nothing to do with the eight year-old, well, then, clearly there are differences in the two homes that the court can then think about when determining custody.

Todd Orston: Hey, over here with somebody their own age, clearly good relationship. That parent loves them, good bond, everything. Over here, not a lot of contact. Or even if there is, and there's an older child, they're not really going to gel. So, what would be in the child's best interest under this factor? Maybe in that first home.

Leh Meriwether: We've even seen these two factors play into a court doing what's called split parenting, where, let's say, the daughter stays primarily with the dad, and the son stays primarily with the mom or vice versa, but the kids always see each other on the weekends. And maybe partly because the siblings just didn't along, and there was an equal bond and affection with the parents. And the children, it's just there was so much strife at home when the two siblings were together during the school week.

Leh Meriwether: The court did a split parenting arrangement. So the court can look at these two factors, not just for giving someone primary or executing joint, but doing what's called split parenting. And up next, Todd is going to explain what it means when one of the factors is the capacity and disposition of each parent to give the child love, affection and guidance, and to continue the education and rearing of the child. I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1AM on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston: Better than counting sheep, I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back, everyone. I'm Leh, and with me is Todd. We are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. And you can get information about this show and others, including the transcript at divorceteamradio.com.

Leh Meriwether: Today, we actually are answering the question that we've gotten. And because it was such a big question, there was no way we can answer it in just a few minutes on a one of our regular Q&A shows. The question was about, what is the law the judges have to follow when determining who gets child custody in Georgia? And so we're going through 17 factors actually, that the legislature of the State of Georgia had made suggestions to the judge to consider when determining custody. And this law exists as of September of 2020.

Todd Orston: We are on C, capacity.

Leh Meriwether: Oh, yeah.

Todd Orston: The capacity and disposition of each parent to give the child love, affection and guidance, and to continue the education and rearing of the child. So basically, what that is, is how invested is the parent? How invested is the parent and capable is the parent to provide the child with love and affection, and to guide the child and to do what is necessary? Basically, to parent the child and to do things like to continue the education and rearing of the child in a healthy manner.

Todd Orston: So if somebody is like, "I want primary custody," and they work the night shift and they sleep all day, and it's basically like, "Hey, son, daughter, best of luck, there'll be some food in the fridge, and just do me a favor, write me a note as to what school you're going to because I think it's important that I know," but that's where things stop, whereas the other parent clearly is doing homework with the child, helping if the child needs a tutor and things like that, is clearly invested and is capable of showing affection and showing that love that a child needs as opposed to, "I'm sorry, I'm just working all day long," which I understand, that's also necessary, but you are pretty much unplugged from that parenting role, well, obviously, the court is going to look at that.

Todd Orston: And this factor is where the court says, which of these two parents is going to be able to step in and really fulfill in that parenting role?

Leh Meriwether: Right. So you could be off the charts on number A, love, affection, bonding and emotional ties, but in this one, C, if you are the traveling parent and you're gone five days out of every week, you're going to be at the bottom when it comes to number C. So all these things play together.

Leh Meriwether: Because you may have a great bond with your child, but if you're not present because your job requires you to travel five days out of every week, that's a problem. So not to say it can't be worked around, but everything, it's all a balance. So the court doesn't look at just one factor. That's why we wanted to go through all of them.

Todd Orston: That's right. All right. So, how about the next one? All right. I'll throw this one at you. Each parent's knowledge and familiarity of the child and the child's needs.

Leh Meriwether: And that, so I've literally seen in court an attorney ask a party, "So, what size shoe does your daughter wear? What size shirt does your son wear?"

Todd Orston: Who is the English teacher? Right. Absolutely, those types of questions.

Leh Meriwether: And he couldn't answer those questions. It was a serious factor that the judge considered when determining custody. He said it in his ruling. That is very important, the needs. If you go to a clothing store, what size clothes do you need to get for your kids? Now, I want to say real quick, we have a lot of factors, so I'm just going to say this real quick. During the course of your marriage, you may have had roles inside the marriage when it comes to raising the children.

Leh Meriwether: So maybe for the course of your marriage, you really didn't know the children's sizes, because the other parent took care of all that. But now, it's time for divorce and like I said, maybe you excel in all these other categories, you need to spend a little time and figure ... if you're saying, "Hey, I want primary," you need to know these things. So you need to step back, figure out what the shoe sizes are, figure out what all these things are.

Leh Meriwether: So when you're asked on the stand, you can say, "Yeah, this is what Jimmy and Jane need for their school clothes this year." And then they may say, "Well, you didn't use to know that." "No, I didn't because I didn't need to. Those were the roles we had." So that's okay. It's for this point forward.

Todd Orston: That's a great point. Remember, wait, before we go on, I want to add something. The document that you're going to end up having to prepare or that will be prepared for you, it's called a parenting plan. And so we always tell clients, "You need to have the plan. You need to understand all of these things." So if you're going, here's a piece of practical information. All right. Absolutely, it's not just shoe sizes.

Todd Orston: Names of teachers, names of therapists, names of the pediatrician, where the pediatrician's office is. You need to think about any and every one of those factors. And that means you may have to do some work, because if you weren't the one who commonly took a child to the pediatrician, you need to understand who that pediatrician is. I would pick up the phone, I would call the pediatrician. Call that office. Make sure you have all of the updated records regarding immunizations and other things, so that you are aware, because that is absolutely, I'm just building Leh, on what you were saying, that's absolutely a way that an attorney on the other side will try to discredit you.

Todd Orston: So it is up to you to educate yourself and make sure you are ready when asked those questions and challenged in that way. You are ready to provide information and prove to the court, "Hey, I may not have been the one who did these things on the regular, but I know it. I know the school I know the doctor, I know the coaches. I have contacted and communicated with all of them, and I am ready to step in and be an active parent."

Leh Meriwether: All right. So next one, the capacity and disposition of each parent to provide the child with food, clothing, medical care, day to day needs and other necessary basic care. And here's the kicker part, with consideration made for the potential payment of child support by the other parent. A lot of parents, they hear the first part and they get fearful. There's no way I could cover all these expenses because I didn't work during the course of the marriage. I was the ... well, I take that back.

Leh Meriwether: You did work, you just weren't generating any revenue. You were doing a lot of work raising the children, because that is hard work. But that doesn't necessarily generate a paycheck, so the court can look at, all right, when mom gets child support and alimony, and then she gets a job, what's that look like? Can she care for the children? And again, it's one of many factors.

Todd Orston: Yes. They keep using these terms, so I'm going to make sure that we understand; capacity and disposition. What that really means is, are they capable? And do they want to? The disposition, is it something that is important to them? All right. And then, really, this goes to the heart of something we have heard many, many times where, let's say, the working parent who makes the income will turn around and be like, "Oh, you're unstable. I'm going to win custody because I have a job, I have income, I'll be able to provide. You don't work and therefore, you're going to lose custody."

Todd Orston: Well, it doesn't play out that way. That's what child support is for. It's to help level that playing field and make sure a child is taken care of. And so really, what this has to do with is not only are you capable with potentially, the help of child support, but do you understand the importance of prioritizing the providing for a child, or of a child? Providing them with food and clothing, medical care and their day to day needs? And that's what the court is going to be looking at.

Leh Meriwether: All right. Well, that's one of the factors that will prompt lawyers to say, "Hey, I need you to go to get all the pediatrician records, because if they show you are the one who's constantly taking the children to the pediatrician, that's in the records." Who shows up to the appointment with the children is in the records.

Leh Meriwether: So if you were the one taking care of all those things, that counts to your favor because you have the capacity and the disposition to make sure their medical needs were met. That's one of the other factors. All right. Let's go to the next factor. Heck, we could have a whole show on each factor, but we don't have time for that.

Todd Orston: I know.

Leh Meriwether: And it might put us to sleep, because we would start getting hyper technical. And that's what I mean by that. And yep, people's eyes tend to gloss over when we start getting too deep on the law. That's why Todd said, we're not going to read you the law. We're going to talk about what it means in practical terms. All right. So when we come back, we're going to get into the next factor, the home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors. This is one of those times when you hear the term Disneyland Dad or Disneyland Mom. We'll get into it when we come right back.

Leh Meriwether: Hey, everyone, you're listening to our podcast. But you have alternatives. You have choices. You can listen to us live also at 1AM on Monday morning, on WSB. If you're enjoying the show, we would love it if you could go rate us on iTunes or wherever you may be listening to it. Give us a five star rating and tell us why you like the show.

Leh Meriwether: Welcome back, everyone. I'm Leh, and with me is Todd. We are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. And you can get transcripts to this show and our past episodes at divorceteamradio.com. Well, today we are diving into the 17 different factors a judge can consider when determining custody. And again, we talked about this earlier, but this is the worst case scenario.

Leh Meriwether: When I say worst case scenario, you haven't been able to work things out and now you're in front of a judge. And we're talking again, about Georgia law as of June 20 ... I'm sorry, September 2020. I don't want to go back in time. I want to get through this year. I'm ready for 2021 right now. So we're talking about that, and we're talking about the different factors. We are reading the statute, but then we're breaking down, what does this really mean? Because I think if we just read the statute to you, you'd probably fall asleep. But we're putting it in practical terms, trying to avoid the legal ease where possible. At least I am. No, I'm just kidding.

Todd Orston: All right. So having said that, let's jump back in.

Leh Meriwether: All right. So, where did we leave off? All right. Was it the home environment?

Todd Orston: Home environment. So the home of each parent, considering the promotion of nurturance and safety of the child rather than superficial or material factors. What I'm going to say is it's not so much the Disneyland Dad factor. It's more the issue of he or she with the biggest house doesn't necessarily win. The one that has basically, the mansion and the pool and basically, the go-karts in the backyard and who knows what they have, that doesn't mean they're better parents. That doesn't mean that that home environment is better.

Todd Orston: Those superficial and material factors aren't going to win you custody. As long as your home, which may not have the zip line and basically, the parasailing and who knows what else, the hot air balloon launch pad, whatever, just because your home doesn't have those things, if you have a clean home and it is a safe environment, and they have their own room and a bed and there's a bathroom and basically, it's just a nice family home environment, that doesn't mean it's a bad home. It doesn't mean that it's worse than the other. Those material factors aren't what's important. And this is saying to the judge, to the court, "Hey, the one with the most toys doesn't need to win."

Leh Meriwether: Right. So it's more like, are you sitting down making sure they do their homework? Are you doing their homework with them? Are you arranging for perhaps if they're younger, play dates with people in the neighborhood so that the kids are interacting, they're having fun, you're watching out for them? So talking about safety of the children, one mom is very careful, makes sure the child is buckled in, has the right car seat. I've seen where parents lost custody because they just couldn't figure out how to buckle on a car seat.

Leh Meriwether: It was a lot more than that. That was a factor that came up. Or someone that puts the child on a boat. So going back to the material factor. Wow, that's a really cool boat, but he didn't put a life jacket on his five year-old. He goes really fast in the water and the five year-old could have been thrown out and drowned. That's what we're talking about; nurturance and safety. All right. Let's hit the next one.

Todd Orston: All right. So-

Leh Meriwether: The important [crosstalk 00:26:26]. Go ahead.

Todd Orston: No.

Leh Meriwether: Please. Please, sir. All you. The importance of continuity in the child's life and length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

Todd Orston: All right. So continuity. What that means is, basically the court is looking at what has been happening, and then making a determination as to, do we really need to change what's been happening? It's that old saying of if it is not broke, don't fix it. So if let's say, parties are separated for over a year, and mom, I'm just using as an example, has had primary custody and the kids have lived primarily with mom. And now, all of a sudden dad comes in and goes, "Well, I want primary custody."

Todd Orston: Well, mom has a good home environment and she has been able to show the children or provide the children with that love and nurturance and all those other things we've been talking about. Then the court is going to be looking at this and going, all right, well, what's going to be more important, changing and giving dad primary custody, or continuing what's been happening? If that's what's in the best interest of the child, meaning if that's been a good situation and the children are thriving in mom's care, well, maybe we just need to continue doing what's been happening. And continue with this arrangement rather than make a change that maybe the children don't want or need at this point.

Leh Meriwether: I see this factor playing more into the modification cases than necessarily an initial divorce case. Because, well, for example, I've seen one where the parties got divorced and dad basically stayed in the same place. And over the course of two years, mom had eight different residences, and the children kept moving from school district to school district.

Leh Meriwether: Mom was very unstable in that situation, and that was a case that merited a change of custody because mom could not provide that stable home and a stable home environment. There was no continuity when it came to the children's schools because they kept having to change schools. That's what we mean.

Todd Orston: I'll also say though, that where you do see in divorces is with relocation cases. Because a child, let's say, has been raised in the, I'm just using as an example, the Atlanta area and one of the parents says, "Well, when we get a divorce, I'm going to be relocating to another state." Then that continuity aspect will be considered by the court.

Todd Orston: Is it better for us to allow the children or the child to remain in this area where they were born, where they were raised, and with the parent who is staying rather than have to pack up and move to a totally new area? And obviously, that's not a continuation. That's something brand new. That brings its own level of stress to children. And therefore, I believe in divorces, oftentimes, this factor becomes very important, the continuity when dealing with relocation.

Leh Meriwether: Right. And that actually plays into the next factor, the stability of the family unit of each of the parents, and the presence or absence of each parent's support systems within the community to benefit the child. So the support systems can be grandparents that can come in if a mom or a daddy gets sick. Or if the child is attached to that grandparent or uncle or cousins, or it can be nieces, nephews, aunts. All those factors, that's part of a parent's support system. And if the entire parent support system is here in Georgia, and then one parent wants to move to Illinois where her boyfriend or his girlfriend lives, well, that's not a support system.

Todd Orston: Or even if it's not a relocation case, and you have mom who has friends and family and their grandparents, and aunts and uncles, and nieces and nephews and cousins, and dad has two friends, two of whom are in jail, then basically, there's a big difference between the two, right?

Leh Meriwether: Yeah.

Todd Orston: One has no support system, the other has an incredible support system. And what the court is thinking of there is, what kind of a life is the child going to have? Are they going to be surrounded by not just a parent who can shower them with the love and those necessities, emotional and other necessities, but are there family, friends? And if mom needs help, are there people ready to step in and provide that level of help?

Todd Orston: And we've had situations where it's like, one just absolutely has access to a tremendous system, and the other person doesn't want to leave. But the other person is like, and they really know no one. They don't go out of their way to even have the friendships and get that kind of assistance. And courts will absolutely lean towards that other parent because it's like, look, I think you can provide a more stable environment for the children.

Leh Meriwether: All right. Next one, the mental and physical health of each parent. Now, there's exceptions to the rule. We won't go into the exceptions, but the court can look at the mental and physical health of each parent because that can be critical if the parent is suffering from ... We've seen some parents get a stroke that impacted their ability literally, to care for themselves, let alone for their children.

Leh Meriwether: And then the same thing with mental health. Maybe someone is suffering from a severe personality disorder that makes it very difficult for them to parent well, because they have no patience or whatnot. That's another factor the court can consider. When we come back, we're going to wrap up the 17 child custody factors that a judge can consider. I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1AM on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston: Better than counting sheep, I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back, everyone. I'm Leh, and with me is Todd. We are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. And you can get transcripts of this show and others at divorceteamradio.com. Well, today, we're breaking down the 17 child custody factors a judge can consider here in the State of Georgia as of September 2020. And I'm talking fast because we have about eight different factors to wrap up the show. Fortunately, they're short, that's why we saved them for last. But, Todd, why don't you take over J?

Todd Orston: All right. Each parent's involvement or lack thereof in the child's educational, social and extracurricular activities. The important term there is involvement. All right. So if you have a parent who has never even tried to be involved in extracurricular activities, in school issues, in medical issues, anything, the other parent is always taken to doctor visits and goes every day to coaching and this and that, then that's going to be something the court looks at.

Todd Orston: Now, again, you talk, Leh, very importantly about roles. Sometimes you assume different roles. So if you are the parent who deferred some of those responsibilities to the other, then you need to as soon as you know you're going through this divorce, or dealing with this custody issue, you need to start getting involved. You can't just defer those things and expect that potentially, it might not be held against you.

Leh Meriwether: Yep. And I'll just say this real quick before getting to the next one. I've heard judges say the two hardest cases to decide are ones where you have two really good parents, and ones where you have two really bad parents. Because you could have a situation where mom is very involved in the educational realm, and all you see is when it comes to parent-teacher conferences, the mom's at all of them, but dad's not.

Leh Meriwether: But on the flip side, dad coaches all the kid's extracurricular activities. It takes up all his spare time, and that's why he can't make the parent-teacher conferences. It's because he's coaching all their extracurricular activity. So you have to very involved parents, they're just involved on different levels.

Leh Meriwether: Number K, each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child. So this comes back to as some of these crossover issues, if dad or mom, for that matter, I've had both, travel extensively for their work, well, that can make it difficult to parent for a child because the court is not going to say, "Well, you know what, we're going to have this parent over here, even though they travel, they can hire a nanny." No, no, no.

Leh Meriwether: A nanny is not going to take over for a parent. So the court is going to look at the employment schedule. Again, I had a case where someone's employment schedule was a limiting factor, found out he was going through a divorce, went to the judge ... not the judge, his boss, changed his employment schedule and then the court, because he made that change, it wound up being 50-50 custody. That can be something that is dealt with before you get in front of a judge. If you have an employment schedule, that is contrary. All right. Number ... all right. You go to the next one.

Todd Orston: Next one. The home, school and community record and history of the child, as well as any health or educational special needs of the child. So basically, the court is going to be looking, how's the child doing in school? How is the child just doing just with any kind of community activities and things of that nature? Does the child have any educational or other special needs? Those types of factors. But then this factor ties into other ones that go to the capacity and disposition of a parent to deal with these issues, right?

Leh Meriwether: Mm-hmm (affirmative).

Todd Orston: So this is looking at, what are the needs of the child? But of course, the court is also going to be looking at, all right, if this child has some special needs, all right, what are those needs? And which parent is going to be best able to meet the child's needs?

Leh Meriwether: Man, we could spend a whole show just on the special needs cases because they're very difficult.

Todd Orston: Oh, absolutely.

Leh Meriwether: They're very challenging.

Todd Orston: Absolutely.

Leh Meriwether: All right. So next one. Each parent's past performance and relative abilities for future performance of parenting responsibilities. And we've touched on this earlier, that's where that comes into, that's when I heard one judge say, "The hard stuff." When the kids get sick, who's, I hate to say this, but cleaning up their throw up? Who's taking them to the doctor? Who's making sure they're at all their parent-teacher conferences? Who's making sure they're doing their summer reading, if they're at that age?

Leh Meriwether: The court is going to look at past performance, because that's often an indicator of future performance. Now, that doesn't mean going back to if parents have just certain roles they had agreed to, that doesn't mean if you weren't actively involved in that stuff, that suddenly you're going to lose. It goes back to that whole thing above the capacity and disposition to do those things. So those two things, those two words work together.

Todd Orston: And that, where it says here, the relative ability for future performance.

Leh Meriwether: Right.

Todd Orston: So I agree with you. It's basically, commenting here, "Hey, your past performance may have been poor, but show me, show this court what the future is going to look like. And if you're capable, then great. You're going to step in, you're going to do a good job." All right.

Todd Orston: The next one is the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child. All right. This is to me, one of the most important ones that courts look at.

Leh Meriwether: Oh, yeah.

Todd Orston: It is the ability to co-parent, the ability to work together, if both parties can put aside the anger that they might have towards the other parent. This usually comes because of a failed relationship. You don't have that kind of a romantic relationship anymore and therefore, you have to still be parents. If one party is so filled with anger that they can't or don't or won't communicate, then they are not co-parenting well. So the court is going to look at the willingness and ability of each of these parties, each of the parents to basically facilitate a good relationship.

Todd Orston: As I sometimes say, I don't care how angry you are at the other party as a past husband or wife, or just a past person you had a relationship with. You need to put that aside and foster a good relationship and not alienate the child from that parent. And those are things the court is going to really focus heavily on. So if you are engaging in that kind of behavior, understand if it gets brought to the court in the right way, it could jeopardize your ability to act as a primary parent and role model for that child.

Leh Meriwether: We could spend a lot more time on this, but we've actually spent entire shows just talking about co-parenting. In fact, we have a couple of shows with Diane Dierks who came on, so definitely go back and listen to those. And we also had one with Jay and Tammy Daughtry. They have a book called Co-Parenting Works! What was that name of the show? Oh, the top 10 things that children wish they could tell their divorcing parents. You definitely want to listen to that show too.

Leh Meriwether: And I agree with you, Todd, I think this is to me, we often marry in court and we have two great parents. But then this item, this factor becomes the number one factor for the court to consider. Or the one that they hyper focus on, the co-parenting. The next one is, any recommendation by a court-appointed custody evaluator and guardian ad litem. We're not going to go into extreme detail on this, but essentially, a custody evaluator and a guardian ad litem are both considered expert witnesses.

Leh Meriwether: They do a lot more investigation than the judge can do within the confines of a courtroom and a trial. They investigate all kinds of external factors that could never get into the courtroom for both practical reasons and evidentiary reasons. They get this information and then they issue an expert opinion as to what they think would be in the child's best interest. And we've had whole shows just on custody evaluators and guardians, so we're not going to get into those things in detail. But the judges do weigh those very heavily. All right, next.

Todd Orston: All right. Any evidence of family violence or sexual, mental or physical child abuse, or criminal history of either parent. Very quickly, I will say obviously, if there is evidence of a past crime, that the nature of that crime can in and of itself jeopardize the welfare of a child, then yeah, the court is going to be concerned.

Todd Orston: I will have sometimes someone say, "Well, they keep bringing it up and they're going to use it against me. I got a DUI 20 years ago." I usually tell people, I don't care. All right. That, I don't think will bother the court. If a month ago you got a DUI and the evidence says you have a drinking issue, obviously that could have a bigger impact on the case.

Leh Meriwether: Which plays into the next factor, any evidence of substance abuse by either parent. So again, going back to what you said, Todd, it's really got to be what I would say, relevant. It's got to be time-relevant, meaning 20 years ago, the court is probably not going to care. But if it happened within the year, yeah, the court is going to care.

Leh Meriwether: So any type of illegal drug use that particularly, if it's going to impact your ability to parent the children, that's the most critical factor. It's also illegal too. But unfortunately, we're out of time, everyone. Hey, thanks so much for listening. We actually, were able to hit all 17 factors.