Some courts attempt to prevent such battles by first referring the spouses for mandatory mediation. In most states, the routine begins with spouses taking a position, such as a willingness to share joint legal custody or sole custody with visitation. In most states, the spouses are required to make a statement in compliance with the Uniform Child Custody Jurisdiction Act (UCCJEA), declaring where and with whom the children have lived for the last five years. Depending on case, the judge may then hold a hearing on the question of temporary custody pending a decision about permanent custody arrangements.

Almost all jurisdictions require courts to base custody decision on the best interests of the child -- a standard that allows for judicial discretion. In general, however, courts consider the age of the children, the living situation of the parents, the parents’ relation with the each other, the parents’ relationship with the child, the child’s preference as well as continuity and stability and evidence of abuse and neglect.

If the battle between spouses becomes pitched and the parents cannot agree, the court may require a custody evaluation. In this routine, a custody evaluator -- a mental health professional such as a psychologist, or a guardian ad litem, who is a lawyer representing the children -- makes recommendations to the court about the best interests of the children.

A child custody evaluation can be very invasive and difficult. It involves announced and unannounced visits with both spouses, observations of the child with each parent, interviews with the child and discussions and meetings with teachers, doctors and therapists. Some evaluators uses psychological tests as well. The evaluator’s report, among other things, makes recommendations to the court custody, visitation and time-sharing.

One goal of the evaluation is to determine how the divorced spouses and child function together even though the family is fractured.

A court is not bound to accept the recommendations of a custody evaluation, but most put weight on it since it is often only neutral information a judge may have about a family and its dynamics.

See UCCJEA; Best Interests of the Child; Guardian Ad Lltem.

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