These considerations give me the basis for comparing the parties and their parenting abilities. Each category's meaning is set out in below.
1. Love and Affection
Which party provides the best kind and degree of love and affection for the child? For example, which seems to care most? Which do the child or children respond to more readily? Which seems more willing to make sacrifices for the good of the child or children. While at the same time appropriately encouraging their quest for independence? which seems to enjoy the company of the children more and better able to laugh and play with them constructively? The answers to these questions will have high priority on the list of considerations.
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2. Discipline
Which party provides the best discipline for the child. Most people recognize that property discipline is necessary for any person to achieve reasonable goals in life, and particularly for children. The setting of limits, and a system for enforcing them, is a basic requirement of parenting. For example, which party has the best approach to curfews, and the best methods of enforcing them? A judge or a jury will know that the parent who doesn't know where his or her child is and what he or she is doing is asking for serious trouble for that child and the parent as well.
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3. Personal Responsibility
By personal responsibility I mean essentially self-discipline. For example, which of the parties makes the greater effort to see that the child keeps his room clean, bed made, teeth brushed, clothes put away, etc. These are habits which are obviously not the most important in themselves, but indicate which parent is better equipping the child to take care of himself in the future. A sense of self-discipline is an extremely important cornerstone of personal development, and it can begin at home in simple but effective ways.
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4. Formal Education
Which party is more committed to education? For example, which person helps with homework, attends conferences with teachers and encourages good grades? This category rates very high on the list of considerations. A judge or the jury will no doubt feel some debt of gratitude to a parent or parents who encourage children in their formal education.
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5. Extracurricular Activities
Which person encourages athletics, music lessons, Boy Scouts, and the like? which seems more willing to make the sacrifices necessary to permit participation? For instance, wouldn't it have been a tragedy if Roger Staunch had been raised by parents who refused to permit or make the sacrifices that allowed him to develop his talent?
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6. Leisure Time
Leisure time is a powerful restorative, and a wonderful opportunity to develop special interests which formal education and extracurriculars do not satisfy. It is also an opportunity for destructive influences to work. Supervision is important, as well as the availability of sources of enjoyment such as playmates, playground, or perhaps books, games and the like. which of the parties can provide the best resources for the child in this regard?
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7. Religious, Moral and Ethical
The law is committed to religious freedom, and that is as it should be. But when judges and juries are required to play parents because of the failure of a particular family unit, the will of necessity have to make a judgment about which party to the custody suit will provide the best approach to religion. Moral and ethical training are similar subjects. Those tenets that are time tested and therefore seem more reliable will be more acceptable than others. Which party seems more committed to appropriate and reasonable courses of training for the child in these matters? Church attendance, Sunday school, and religious activities are clues to the kind of influences the child will be subjected to
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8. Development Model or Example
Which person displays the better personal characteristics required for living respectably and responsibly and successfully in the world of the child's future? For example, which demonstrates the best coping abilities, that is, who can best make a living and be a parent at the same time he or she is maintaining a happy or at least wholesome personal life? If a parent's example is one of promiscuity, excessive drinking, law personal discipline, etc., the judge or a jury will expect the child to develop similarly, even though these aspects of his parent's life are not obvious to the child. It is difficult to conclude that a person's problematical personal life will not affect the child, at least to some degree. In any event, I think that juries tend to prefer the person who is generally more stable and wholesome, judged according to a rather traditional set of values.
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9. Ulterior Motives
If you are the mother, do you want the child for child support payments or other benefits, such as welfare or social security, which are available to the managing conservator? Or if you are the father, are you only being spiteful because of your failures as a husband? And don't forget to look for the influences of third persons, such as grandmothers, who are through their own child seeking custody of their grandchild. In this regard, one always expects a grandmother to side with
her child, so in deciding whether she is the ulterior motive, the judge or a jury will look beyond this natural alignment with such questions as: who will keep the child while the parent is working, or who often has temporary visitation been conducted at grandmother's?
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10. Future Plans
Do they include planning for the care and upbringing of the child? Do they seem conducive to proper parenting? For example, are you planning to remarry? If so, how will your intended spouse stand up to the scrutiny of the jury? And if the plans represent a substantial departure from the way the parent has lived and one things in the past, will they really be implemented?
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11. Goals and Ambitions
Which party displays the more appropriate desires for the future? And which seems to be the most able to accomplish what you intend? A father going to night school four nights a week after work is to be applauded, but will he have sufficient time to be a parent? On the other hand, a fellow who can't seem to keep a job won't be a very good example to a youngster, particularly when compared to a hardworking mother who is getting ahead within the confines of a nine to five job five days a week. She may be able to teach the youngster more about success and happiness in the real world than either of the fathers mentioned above.
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12. Housing and Homemaking
Most people would think that mothers are cinch winners in this category. However, more often than not a custody case reveals mom to be a sloppy housekeeper. In any event, housekeeping is very important to youngsters, and to juries who are choosing a parent. That is not to say that the best parent is required. Sometimes the best housekeeper is preoccupied with those chores that he or she pays attention to nothing else. Look for the happy medium. It's been my experience that such is most often preferred. As to the physical facilities, which of the parties will have adequate housing for the child after the verdict? For example, dad is going to have to be pretty bad, or mom is really going to have to shine in other categories, if all she has to offer by way of housing after the trial is a one-bedroom apartment in a singles complex.
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13. Day-Care
Historically, one of the reasons that mother have been preferred as managing conservators is that they were available to care for the child or children all day long while father worked. Mother might still be preferred by juries for this reason (despite the instruction that sex shall not be considered) in a case where father makes enough that mother can stay in the home with the children and live on the child support and her share of the community property. But nowadays, with both parents working in most cases, juries are pressed into choosing not between mother and father's day-care center, but literally between non-parent care providers in many cases. If mom wants her mother to care for the child during the day, and dad wants to leave the child with a day-care center, the jury is going to consider which is best perhaps using many of the criteria outlined for you herein. Judges or a jury will test the proposed day-care providers in exactly the same way as suggested for determining managing conservatorship. After all, eight hours a day, five days a weeks, is almost as long as parents' time with the child after work and on weekends. For this reason alone, we can't overlook the day-care provider as a very important influence on the child.
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14. Availability of Client and (Ex)Spouse
Which of the parties is more likely to be there when the child or children needs someone? Any
physical presence alone won't do it. Which will be more open and responsive to what the child needs, be it counsel and advice or just a little conservation? The mom who prides herself on an extremely active social life loses in this category. Provided, of course, that the father is acceptable otherwise. Jobs that require travel are another basic consideration, as well as other activities which take a parent's attention away from the children.
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15. Social Abilities
Which party seems to be able to get along with others in work, play and other ways? Learning to get along is necessary to full development of the child. Once again, a happy medium seems to be preference. Neither the social lion or lioness, nor the fellow who cannot keep a job can do well here. This category also includes such considerations as relations between child and elders, child and teachers, child and merchants, etc. What I want to get at is: "Which party can better prepare the child to deal with those persons to whom he or she must relate in work, play, study, and all other areas of the child's life?"
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16. Prior Experience
Which of the parties has had most of the prior responsibility for the raising of this child? For example, if the child is emotionally unstable and lagging in development, and one of the parties has primarily been responsible heretofore for his or her upbringing, perhaps that party is to be avoided as a choice for managing conservator. However, that is not to say a lot about the one who now seeks to deprive the prior influence or the child, unless that one has had little opportunity to do anything about it before now. A father who has accepted his wife's parenting for several years should be scrutinized carefully when his testimony scathingly criticizes what his wife has done in the past. They may be two peas from the same pod.
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17. Temporary Orders (If you are at that point, yet)
Were they agreed? If so, can this really be a serious custody dispute? If they were not agreed, how has the child fared under the temporary arrangement? If the mother was appointed temporary managing conservator, has the father taken very opportunity to visit? Has he fulfilled his support obligations? Same questions to the mother when the father has been the temporary managing conservator.
The categories I have devised are not exhaustive of the possibilities by any means, nor have I stated all the relevant questions pertaining to each. In addition, some categories will overlap others in a particular case. But I nevertheless find my approach of great assistance in coming to grips with the competing interests represented in a custody case.
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