If the Wife Filed for Divorce, Who Will Get Custody of the Kids?

By Ciele Edwards

Daughter (6-7) and father hugging, girl looking at camera, outdoors

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Of all the issues attached to divorce, none can be quite as emotionally draining as a child custody dispute. If the divorcing couple cannot reach a custody agreement on their own, the court steps in. The judge evaluates a variety of factors before determining the custody arrangement that meets the child's best interests. Child custody decisions are not made on the basis of which parent initially filed for divorce.

Best Interests Standard

Although each state has its own specific set of criteria judges must examine during a custody dispute, the “best interests standard” agreed upon by the National Conference of Commissioners on Uniform State Laws applies in every state. The best interests standard requires that a court take the following into consideration before awarding custody to either parent: each parent's wishes, the child's wishes, the child's relationship with each parent and with his siblings, the child's emotional attachment to his school, home and community, and the mental health of all parties involved.

Additional Factors

The additional factors a court examines beyond the basic best interests standard vary by state. Pennsylvania, for example, places children with the parent most likely to provide a stable and conflict-free home. Because judges want to see children maintain a relationship with both parents – even if those parents cannot maintain a civil relationship with one another – a judge is more likely to award permanent custody to the parent she feels is most likely to foster a positive relationship between the child and the noncustodial parent.

Negative Influence

Which parent files for the divorce has no bearing on the court's custody decision. The reason behind the filing, however, may pose a threat to the child and subsequently influence a judge's ruling. If, for example, the wife filed for divorce because her husband was physically abusive or a drug addict, the judge will take these factors into consideration, because they pose a potential threat to the child.

Gender Neutral Laws

Mothers do not win custody automatically. To avoid discriminating against either parent, most states have adopted “gender neutral” statutes. A gender neutral statute requires that the judge examine only the required facts and not take a parent's gender into consideration when determining child custody.

Change in Custody

Although many courts are reluctant to remove a child from a home unless that home is unstable, the parent that loses the custody battle can file a petition to change the custody arrangements at a later date provided he has just cause to do so. For example, he can petition for a change in custody if he fears the child is suffering from abuse.

The noncustodial parent also has the legal right to immediately appeal the judge's custody decision and take the case to a higher court. If the noncustodial parent opts to immediately appeal the ruling, she must do so within the time limit for custody appeals in her state.