Can You Handle Custody?

As you have probably noticed by now, not all custody arrangements reflect upon you as a parent or your behavior as a person. Circumstances such as distance, the child’s needs, and other situations can lead custody arrangements to diverge from a 50:50 split. The factor we’ll examine in this post is another one of those reasons why you could end up with an uneven custody schedule.

1) Availability and the ability of a party to care for the child is yet another factor that will influence a judge’s decision. Availability and ability mean two very different things, so we will look at each in turn.
Availability. Typically this is taken to mean a party’s physical presence when investigating the availability to care for the child. Perhaps you are an emergency response physician who is on call 24/7 while the other party is a stay at home parent. Chances are, the at-home parent will have longer custody periods, or maybe an even more flexible arrangement will be necessary. Maybe the other party is a truck driver for a nation-wide delivery company, expected to work for long stretches at a time, driving across the country and back, but you are a school teacher who enjoys normal business hours and regular holidays. When we think of and question availability of the parties, this is lens through which we are observing. These situations won’t necessarily prevent you from custody, but they will likely affect when you custody occurs. If both parent work similarly, there may be an agreement for appropriate child care.

2) Ability. This falls into two separate, but similar categories. For those of you who have seen the 2001 drama “I Am Sam” written and directed by Jessie Nelson, starring Sean Penn, you may know exactly where we are going with this one. The film follows a mentally handicapped man who fights for custody of his 7-year-old daughter. There are a number of ailments and conditions that would affect custody, such as schizophrenia, some even as common as depression. The outcome depends on the situation, but the court is going to consider these conditions when weighing whether both parties have the ability to care for the child. The second category considers the term “ability” more broadly. This could mean living environment, financial stability, and general ability to provide a safe environment for a child. Some clients worry that the court will give the children to the other party because they have a higher income. This is not the case. First, we can assume if this earning disparity exists, some form of child support can be expected. Second, so long as you are able to meet the child’s needs- provide a safe living environment, food, clothing, etc., income will likely not be much of a factor. If, however, you fail to provide a safe environment, or if you enter into an unsafe situation, such as moving in with an unstable significant other, perhaps with a record of drug abuse, the judge may consider this against you.

There are endless scenarios that could fall under this factor, but the spirit of it really resonates with the ultimate goal of the court- to create a custody schedule that is in the best interest of the child. If the court does cite a few reasons for while it create a certain order, pay attention. Maybe the judge gave the other party full custody until you provide a bed for the child. This is good news, because it is something that you can fix. If you have major depression, a judge may suggest you seek treatment from a therapist. If you are working 80 hour weeks, cutting back on your work hours may help to make you more available. Remember, custody is always modifiable- that is, given some time, you can always file for a modification of a custody order. If you have any questions, or if you are interested in modifying your custody order, please feel free to contact my office or email me at


This article was written by writer and content strategist, K. Gleason.


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