More from the words of Jed Abraham
The Divorce Act requires that, in a child custody determination, the court must make its award on the best interest of the child or children of the parties. The Divorce Act further requires that in arriving at a determination of the best interest of the child or children the court shall consider all relevant factors, including the following: (i) the mental and physical health of each parent; (ii) the wishes of each parent as to the custody of the child or children, and the wishes of the child as to his or her custody; (iii) the quality of the relationship of the child or children to each parent; (iv) the quality of the adjustment of the child or children to home, school and community; (v) the willingness and ability of each parent and the child; and (vi) the perpetration of domestic violence by a parent, whether directed against the child or children or against any other person. With regard to an award of joint custody, the court must further consider the child or children or against any other person. With regard to an award of joint custody, the court must further consider whether the parents are able to cooperate effectively and consistently with each other regarding the physical care of the child or children, and it must also consider the parents’ respective residential circumstances. The court must not presume in advance that an award either of sole custody to one parent or of joint custody to both parents is the preferred outcome. The court must also not presume in advance that an award either of sole custody to one parent or of joint custody to both parents is the preferred outcome. The court must also not presume that either the father or the mother is the preferred custodian solely on the basis of his or her sex. In interpreting these statutory factors, our case law has emphasized the overriding importance of continuity and stability for children of all ages but especially for children of tender years as the children of the parties in this case.
Having considered the evidence and the statutory factors, the court hereby rules that sole legal and physical custody of the parties’ minor children by awarded to Wife.
Without in any way seeking to minimize the valuable contribution of Husband, the court finds that the Wife has been the primary caretaker of the minor children throughout the parties’ marriage. Of the two parties, it was Wife who ultimately abridged and modified her workplace participation so that she tend on a constant basis to the minor children’s many needs. Wife has also been the primary liaison between the minor children and their schoolteachers.
The children are certainly still of an age to need the regular ministrations of Wife. Husband’s unpredictable work schedule does not allow him personally and regularly to invest the same kind of time and effort as Wife has. Securing stability and continuity for the minor children will be best achieved by allowing them to remain in the care and custody of Wife.
Although the evidence disclosed that the minor children are sometimes home alone before Wife returns from her part-time employment, there has been no showing that this has been harmful to them. And although the evidence also disclosed that Wife has briefly cohabited in the marital home, there has been no showing that the children have been exposed to age-inappropriate explicit sexual stimuli either by Wife or by her paramour. Our case law has firmly established that non-marital cohabitation by a potential custodian can be shown to be directly harmful to the minor children. While Dr. Young did report and testify that the minor children are disoriented and conflicted by the presence of Wife’s paramour in the home, such discomfort appears to be short0term and temporary at worst. It is part of the unavoidable adjustment the minor children will have to make as they become used to regarding their mother as a newly independent woman. It does not rise to the level of harm required by our case law to disqualify Wife from a custodial role with her children.