Serious difficulties in cooperating
The most common ground for sole custody is serious and persistent difficulty in cooperating. This does not mean ordinary disagreements following a separation, but situations in which the parents cannot make basic decisions about the child and the conflict adversely affects the child.
If cooperation is so poor that the child is caught in the middle of the conflict, or important decisions about schooling, healthcare or other essential matters cannot be made, the court may conclude that joint custody is not working.
Violence, threats and control
Another very strong ground is violence. If a parent has used violence against the child, the other parent or another family member, this carries considerable weight. Courts take violence seriously because it affects the child’s sense of safety, even if the child has not been directly subjected to it.
Threats, controlling behaviour and honour-related factors can also have a significant bearing on the custody assessment. If a child is subjected to violence, this should, of course, be reported to the police.
Substance misuse that puts the child at risk
Alcohol or drug misuse is another circumstance that can lead to sole custody. The court considers not only whether substance misuse exists, but also how it affects the child’s safety, care and stability. Documented, ongoing substance misuse that puts the child at risk can be a strong ground for sole custody.
Mental ill health and parenting capacity
Serious mental ill health can also be relevant if it affects a parent’s ability to care for the child or make decisions in the child’s best interests. However, it is important to understand that a diagnosis alone is rarely decisive. The question is always how the situation affects the child in practice.
Absence and failure to take responsibility
Sole custody may also be considered when a parent is absent for a long time, takes no active interest in the child, cannot be contacted about important decisions or simply takes no practical responsibility for the child.
If one parent has managed the child’s care, contact with the school, healthcare and everyday life alone for several years, this can carry considerable weight in the court’s assessment.
Risk of abduction
A risk that the child may be taken to another country or retained abroad is also a circumstance that the court takes very seriously. The risk of abduction is expressly mentioned in the law governing the assessment of the child’s best interests.
Neglect of the child
Neglect of the child can be another ground. If the child does not receive adequate care, supervision, schooling, healthcare or security, the court may consider joint custody inappropriate. The same applies where there are documented shortcomings that social services have identified over an extended period.
The child’s own wishes
The child’s own wishes can also be relevant. The older and more mature the child is, the more weight the court gives to the child’s views. An older child who clearly and consistently expresses a wish to live with one parent can influence the assessment, although the child’s wishes alone never determine the issue.
An overall assessment and concrete evidence
In practice, sole custody is rarely the result of a single circumstance. The strongest cases are often those in which several factors coincide, such as documented violence combined with serious difficulties in cooperating, or substance misuse combined with an inadequate ability to care for the child. The court always makes an overall assessment of the child’s situation.
What often determines a custody dispute is not who is the ‘best’ parent, but who can best meet the child’s needs for security, stability, continuity and development. A parent who can show that the child has a well-functioning daily routine, a positive school experience, consistent care and a clear focus on the child’s needs is generally in a stronger position than a parent who focuses on the conflict with the other parent.
Courts attach considerably more weight to a factual approach, documentary evidence and a consistent focus on the child’s perspective than to accusations and emotional arguments.
As a lawyer working on custody cases, I usually say that the most important question is always: can you show that joint custody harms the child or does not work for the child? If the answer is yes, and there is concrete evidence to support this, there are often good grounds for obtaining sole custody. If, however, the conflict is primarily about the parents finding it difficult to get along with each other, it is considerably harder to succeed with an application for sole custody.