Any family law practitioner knows the new custody statute requires the court to consider 16 factors in determining custody. But what does this mean? Should testimony be strictly limited to the 16 factors? Should there be any input by an evaluator on the 16 factors? What is the role of any other relevant factor? Nearly two years since the statute’s introduction, these questions still remain unanswered. Nearly two years later, the role of the evaluator has become less significant.

Prior to the new statute, attorneys put on testimony that they believed showed which parent acted in the best interest of the child. Sometimes the testimony was very detailed and gave examples of numerous incidents involving the parents in high-conflict situations. Sometimes the testimony was less detailed and focused on convincing the court of which parent was the primary caretaker of the child before the litigation began. This theory supported the position that if a parent was the primary caretaker, he or she could easily identify all of the child’s needs and would be the better parent going forward. Finally, other cases involved no testimony and merely involved a custody evaluator who was selected by the parties or the court to determine custody. Surprisingly, many family law attorneys settled their cases based on this evidence alone.

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