Открываю тему по сhild custody – давайте здесь поделимся информацией- всем тем, что знаем.
Начну с себя, делюсь что знаю.
Критерии, которые суд принимает во внимание при назначении сhild custody в статьях Семейного Кодекса, в зависимости от штата, могут быть более подробными или менее.
Многие знакомы с расхожей формулировкой в обьеме критерия « Child’s best interest » или
« The health, safety, and welfare of the child » , а что это включает в себя – не совсем понятно.
Формулировка критериев в статьях Семейного Кодекса в зависимости от штата может варьироваться, но в целом, критерии у судов примерно одни и те же:Custody determination
1. The parent-child bond
2. Past caretaking
3. Time availability
4. Stability of environment
5. Preference of the child
6. Domestic violence
Что рассматривается под каждым критерием- помещаю ниже.
1. The parent-child bond
Consideration of (1) the amount of time each parent spends with the children
(2)the quality and the appropriateness of the interactions
(3) the degree of emotional engagement, and
(4)whom the child relies on for emotional and other kinds of essential support.
2. Past caretaking.
Consideration of the caretaking role of each parent during the marriage; who was the
primary caretaker. Reliance on past caretaking is a critical factor in the decisional matrix: there is a general agreement among experts that a child usually develops the strongest psychological bond with the parent who has been most involved with his or her daily care and that preservation of this relationship is essential to a child’s healthy development.
Predictability is another major reason that past caretaking has become an increasingly important consideration in custody determination. Reliance on past caretaking will reduce some of the inherent uncertainty about how a child will be cared for following a divorce.
3. Time Availability
The time that a parent has available to devote to his or her children- who has more flexibility to respond to the child needs – both routine and unanticipated
4. Stability of Environment.
Judges give considerable weight to a parent’s ability to maintain a stable home environment. The emphasis on stability may lead a judge to look with disfavor on a parent who has moved around a lot.
5. Preference of the child.
Consideration of a child wishes, once he or she reaches a certain age, usually 12 or 14.
6. Domestic violence.
The majority of statutes direct judges take into account and weight more heavily than other consideration.
Заостряю внимание, что вышеперечисленные факторы рассматриваются судами в совокупности - у кого из родителей по этим основным критериям больше плюсов, чем минусов, за исключением последнего пункта.
Чуть ниже я немного подробнее остановлюсь на вышеперечисленных критериях, поясню - что под ними подразумевается. ( когда время будет)
Какие вопросы исследуются судом при рассмотрении каждого из критериев, можно рассмотреть на примере Мичиганского Семейного Кодекса
Например -Factor (a).
The love, affection, and other emotional ties existing between the parties involved and the child:
Суд устанавливает наличие следующих обстоятельств:
• Who is the child bonded with?
• Who does the child go to with a problem?
• How does each parent relate with the child?
• How much time does each parent spend with the child each day?
• How often does each parent make the child’s meals?
• How often does each parent bathe the child, put the child to bed, and read the child stories?
• Are the parents able to separate the child’s needs from their own?
• How affectionate is the child with each parent?Factor (b).
The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any:• Who stays home from work if the child is sick?
• Who usually handles school and homework issues?
• Who usually handles sports and other activities?
• How does each parent discipline the child?
• How does each parent talk to the child?
• How often does each parent involve the child with grandparents, uncles, aunts, and others?
• Who takes the child to church or other religious events?Factor (c).
The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs:• Who buys clothes, toys, food, etc. for the child?
• Who attends to any special needs of the child?
• What is the earning capacity of each parent?
• Who has flexibility in their work hours?
• How stable is the job of each parent?
• Who can provide health insurance for the child?
• Who makes doctor’s appointment for the child and takes the child to the doctor?
• Who arranges for childcare?
• If one parent earns more than the other, can child support be used to make things more equal?
• If there is a child support order, is the parent paying support? If there is no order, are the parents providing for the child's needs?Factor (d).
The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity:• Who provides a stable, secure, and safe home environment for the child?
• Who can provide more stability for the child?
• Has either parent moved recently and, if so, why? How has the child adjusted to the move?
Factor (e). The permanence, as a family unit, of the existing or proposed custodial home or homes:
• Who is in each parent’s family unit?
• Will the child live with siblings or half-siblings?Factor (f).
The moral fitness of the parties involved:• Has either parent had an extra-marital affair the child knew about?
• Has there been physical or verbal abuse, alcohol or drug abuse, poor driving records, physical or sexual abuse of the child, criminal records, or other negative behaviors by either parent?
• How have these behaviors affected the child?
• Have these behaviors had a significant influence on that parent's parenting skills?
Factor (g). The mental and physical health of the parties involved:
• Does either party have a physical or mental health problem that significantly interferes with their ability to care for the child?Factor (h).
The home, school, and community record of the child:• How does each parent encourage and influence attendance at school?
• Who goes to school conferences and activities?
• Who will make sure the child sees and talks to their friends?
• Who supervises the child’s home responsibilities, like chores?
• Who helps the child with homework?Factor (i).
The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference:• It is up to the court to decide whether a child is old enough to state a preference. Courts have considered children as young as eight old enough. The court will give more weight to this factor with children who are older or more mature. There is no age at which a child can decide where he or she wants to live.
• The preference of the child will not be shared with anyone, including attorneys, parents or siblings
The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents (assuming a relationship with each parent is good for the child):• How will each parent cooperate with the parenting time schedule?
• Does either parent criticize the other parent in front of the child?
• Will each parent encourage a relationship between the child and the other parent?Factor (k).
Domestic violence, regardless of whether the violence was directed against or witnessed by the child:• Has either parent been threatening, emotionally abusive, verbally abusive or physically violent?
• Has there been a pattern of domestic violence, including physical and non-physical abuse?Factor (l).
Any other factor considered by the court to be relevant to a particular child custody dispute:• If a child has special needs, how does each parent take care of those needs?
• Has either parent threatened to kidnap the child?
• Has either parent missed visits with the child or failed to return the child from visits?
• Are there siblings or other children whose custody is relevant to this child’s custody arrangement?
• Are there significant others or new spouses whose relationship with the child affects the child’s best interest?
• Is there a possibility that two or more of the children may be separated?
• How far apart do the parents live? (Especially with regard to parenting time schedules).