Understanding Child Custody

Learn more about child custody and visitation.

Types of Custody Arrangements

Custody decisions are often as unique as the families asking for it and your final custody plan will depend on your specific family and its circumstances. However, some common examples of custody arrangements may include:

  • sole legal custody and sole physical custody to one parent
  • sole physical custody and joint legal custody
  • joint physical custody and joint legal custody, or
  • sole legal custody and joint physical custody (rare).

If the court awards one parent sole physical custody, the judge will typically create a visitation schedule to ensure the child has the opportunity to enjoy a meaningful relationship with the noncustodial parent.

Who Decides Custody?

Like with most family law issues, the parents drive the custody case. If parents can work together to achieve a fair and proper custody arrangement, the judge will likely adopt it into a court order. Working together is the best opportunity for parents to control what happens to their families after a separation or divorce.

If you've tried talking, but you disagree on how to allocate custody and visitation, the court will decide for you. In most states, the judge must investigate and apply specific factors to every custody decision. Once the judge decides, both parents must abide by the order, even if one disagrees.

How Courts Make Custody Decisions

Almost all courts use a standard that gives the "best interests of the child" the highest priority when deciding custody issues. The best interests of a child vary from case-to-case but depend on many factors, including:

  • the child's age, sex, and mental and physical health
  • the parent's mental and physical health
  • the parent's lifestyle and other social factors,
  • the emotional bond between parent and child, as well as the parent's ability to give the child guidance
  • the parent's ability to provide the child with food, shelter, clothing, and medical care
  • the child's established living pattern (school, home, community, religious institution)
  • the quality of the child's education in the current situation
  • the impact on the child of changing the status quo, and
  • the child's preference if the child is mature enough to express an opinion.

Assuming that none of these factors favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment and better foster the child's relationship with the other parent. This may mean awarding custody to the parent who has been the child's primary caregiver with younger children. With older children, the court may award custody to the parent who can foster continuity in education, neighborhood life, religious institutions, and peer relationships.

How to Modify a Custody Arrangement

In nearly every state, a child's stability in custody arrangements is of utmost importance, which makes it difficult (albeit not impossible) for parents to modify existing custody orders. On the other hand, the court also understands that as children grow and parents live their lives, changing circumstances may require updating the current orders.

While each state's procedure for changing custody or visitation varies, most require the requesting parent to demonstrate that, since the last order, there's been a substantial change in circumstances. Additionally, the parent must also show that the current order no longer serves the child's best interest. If the court agrees to review the case, the judge will apply the same best interest standards that are listed above.

Child Custody FAQs

Does custody always go to just one parent?

No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes one of three forms:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

In some states, like New Mexico, the law requires courts to award joint custody, except where joint custody would compromise the children's best interests (or a parent's safety.) (N.M. Stat. Ann. §40-4-9.1). Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement. For more information, see Types of Child Custody.

Are courts more likely to award custody to mothers than to fathers?

In the past, many states provided that the court should order the custody of young children (about five and under) to the mother. Today, however, in most states, courts have either rejected this "rule" entirely or relegated to tiebreakers' role if two fit parents request custody of their preschool children. Today, no state requires that a judge award a child to the mother without regard to both parents' fitness. Instead, most states now require the court to determine custody based solely on what's in the children's best interests, without regard to the parent's gender.

As it turns out, many divorcing parents will work together to determine what's best for the child after they separate or divorce. Some couples may agree that a mother will have custody and that the father will exercise reasonable visitation. Parents may agree because the mother has more time, a greater inclination, or a better understanding of the children's daily needs. But it can also be because fathers presume that the court will award custody to someone else or because the mother is more tenacious in seeking custody. It's important to understand that in most states, the law prohibits a judge from considering either parent's gender when deciding custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what's best for the children. So if you think that you should have primary custody and that you can persuade the judge that it's in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent's chances of getting custody at a later date?

In a word, yes. Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody later, it's unwise to leave them behind. The parent who leaves may end up sending a message to the court that the other parent is suitable for physical custody.

Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children's regular routines.

Suppose a parent must leave the familial home (and wants to be the primary physical custodian). In that case, the moving parent should take the children along and, as quickly as possible, file in family court for temporary custody and child support. If you don't file quickly, the other parent may go to court first and allege that you took the children without consent or knowledge. Family law judges frown on a parent who removes the children from home without seeking the court's recognition. A judge may order that the parent return the children to the family home, pending future proceedings to determine physical custody.

For more articles and FAQs on child custody and visitation, see Nolo's Child Custody, Child Support & Visitation section.

Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

In limited circumstances, the court may deny a gay parent the right to custody of a child, but not for the reasons you may think. Every state requires a judge to determine custody based on a child's best interest—meaning, the custody order must benefit a child's mental, emotional, and physical well-being. The goal in most states is to ensure that a child has a meaningful relationship with both parents. Generally, the court will only consider a parent's sexual orientation if it negatively impacts the child. For example, suppose a child's parent enters into an abusive relationship with a same-sex partner, causing the child to experience domestic violence that requires frequent moves between homes, hospitalizations, or police intervention. In that case, the court is less likely to award custody to that parent. Instead, the court will allocate parental responsibility to the other parent if the judge finds that parent to be "fit" under the law.

In some states, however, lesbian, gay, or transgender parents may still experience discrimination from judges who cannot separate their own beliefs from that of a child's best interest. Although society is moving towards a more inclusive and diverse world, some judges, when considering the best interests of the child, may be motivated by their own or community prejudices and may hide discrimination with issues other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about bias against you because you are a member of the lesbian, gay, bisexual, transgender, queer community (LGBTQ), make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights (www.nclrights.org).

To learn more about legal issues affecting lesbian and gay parents and couples, check out Nolo's LGBTQ law section.

Is race ever an issue in custody or visitation decisions?

The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the court awarded custody of the couple's son to the mother. She remarried an African American man and moved to a predominantly African American neighborhood. The father filed a request to modify custody based on the changed circumstances from the marriage and the move. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision.

Who determines how much visitation is reasonable and fair?

When a court awards physical custody to one parent and "reasonable" visitation to the other, the parent with physical custody is generally in the driver's seat regarding when and how much time is reasonable. In other words, without a specific calendar or schedule, a noncustodial parent's visitation is often dependent on the relationship between the parents. In some cases, reasonable parenting time is acceptable, and the custodial parent will ensure that the child can continue a meaningful relationship with the other parent.

Unfortunately, "reasonable" visitation sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. In situations where parents can't agree, the court will create a schedule for the parents to follow. A standard visitation arrangement often includes alternating weekends, school breaks, holidays, and significant visitation in the summer. For more information, contact a local family law attorney near you.

Is mediation the best approach to solving disagreements about child custody?

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to settle a dispute. The mediator does not have the power to impose a solution on the parties but helps them create an agreement of their own. However, in some courts, the court may ask the mediator to make a recommendation if the parties can't agree. If you're concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge, find out how your court does things before you get started.

There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

  • Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
  • Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
  • Mediation enhances communication between the parents and makes it much more likely that they will cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

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