How the courts decide child custody

Making a decision regarding child custody is often the hardest part of going through a divorce. Rather than considering the needs of the child, the parents often focus on their own wishes.

According to FindLaw, parents can come up with their own custody agreement. However, if they are unable to agree, the courts will make the decision based on various factors.

Basics of child custody

In general, the courts presume joint custody if both parents are competent caregivers. If a judge does not grant joint custody, he or she still grants visitation rights to the non-custodial parent, unless there is a serious issue involving safety.

Factors involved with custody determination

There are many factors that a judge examines, but gender is not one of them, so either a father or a mother could have sole custody. One of the factors involved is the proximity of each parent’s residence. The judge also considers if one parent has been the primary caretaker up to this point, as stability and continuity are important for a child’s well-being.

The child’s best interest in regards to safety, health and protection is the main focus of custody determination, and the Child Welfare Information Gateway outlines some of the considerations:

  • Mental and physical health of all parties
  • Age and needs of the child
  • Ability of each parent to provide medical care, clothing, food and a safe home
  • Child’s current relationships with siblings and extended family
  • Presence or history of violence or abuse in the home

A judge may also take the child’s wishes into consideration if the child is at least 12 years old and is mature enough to understand the situation.


FindLaw Network