Understanding Child Custody

For many parents, figuring out child custody is one of the most difficult—and most important—parts of a divorce. When children are involved, either the court must decide or the parents must agree on how to handle issues like whether and how custody will be shared, who will make decisions for the kids, and how visitation will work.

Here's an overview of key child custody information for divorcing parents, plus answers to some of the most frequently asked custody questions.

• Types of Custody Arrangements
• Who Decides Custody
• How Courts Make Custody Decisions
• How to Modify a Custody Arrangement
• Child Custody FAQ

Types of Custody Arrangements

There's no one-size-fits-all custody arrangement; the terms of your final custody plan are supposed to be tailored to meet the needs of your family.

The final custody order should normally address both physical custody (which parent the child lives with) and legal custody (which parent has the right and obligation to make decisions about the child's upbringing).

Most custody orders divvy up custody in one of the following ways:

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

When an order specifies that one parent has 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?

As is the case with most family law issues, courts will give a lot of weight to any agreements that parents reach regarding child custody. 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 with your spouse or participated in child custody mediation, but you still 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 enters a child custody order, it is binding on and enforceable by both parents, 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. What a judge considers to be in the best interests of the child depends on many factors, including:

• the child's age, sex, and mental and physical health
• each parent's mental and physical health
• each parent's lifestyle and other social factors,
• the emotional bond between each parent and child, as well as each parent's ability to give the child guidance
• each 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 child with a stable environment and better foster the child's relationship with the other parent. When the child is young, this might mean awarding custody to the parent who has been the child's primary caregiver. With an older child, the court's best interests evaluation might lean in favor of the parent who can foster continuity in education, neighborhood life, religious life, and peer relationships.

In tough child custody cases—such as those where one parent is claiming that the other is "unfit"—judges might order a child custody evaluation. Parents can request a custody evaluation even when a judge doesn't. A child custody evaluator can provide information and recommendations that will help the judge decide what's in the child's best interests.

How to Modify a Custody Arrangement

In nearly every state, one of the main priorities for judges is to maintain stability for the child when deciding custody matters. This strong preference to maintain the status quo can make it difficult—but not impossible—for parents to modify existing custody orders; judges understand that changing family circumstances might require updating the current orders.

To modify custody or visitation, most states require the requesting parent to demonstrate that 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 interests. If the court agrees to review the case, the judge will review the changed circumstances in light of the same best interest standards that are listed above.

Child Custody FAQ

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 (2021).) Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement.

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 (five and under) to the mother. Today, however, most states and courts have either rejected this preference entirely or relegated it to tiebreakers' role if two equally 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.

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 might be on equal footing when it comes to who is better situated to have physical custody. In fact, if you have more flexible hours than the mother, you might have an advantage. 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 toward eliminating any lingering prejudice against you as a father.

As it turns out, many divorcing parents will work together to determine what's best for the child after they separate or divorce. For example, some couples might agree that a mother will have custody and that the father will have reasonable visitation because the mother has more time, a greater inclination, or a better understanding of the child's daily needs. Judges usually approve any custody agreements entered into by divorcing parents unless they are not in the best interests of the child.

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?

It can. Even when a parent leaves to avoid a dangerous or highly unpleasant situation (such as domestic violence), if the parent hopes to have physical custody later, it's unwise to leave the child behind without a firm, written agreement between the parents stating that the arrangement is temporary. Otherwise, the court might interpret the parent's move as a message to the court that the other parent is better suited to have permanent physical custody of the child.

Also, if the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities after a parent moves out, a judge might be reluctant to change physical custody. Any further change might be viewed by the court as an unnecessary disruption in the children's routines.

Suppose a parent must leave the familial home but wants to be the children's primary physical custodian. If the parents don't have an agreement that the move is temporary and won't affect permanent custody, the moving parent should take the children along and, as quickly as possible, file a motion (request) in family court for temporary custody and child support orders.

If the parent who moves out doesn't file quickly, the other parent might go to court first and allege that the children were wrongfully taken. Family law judges frown on a parent who removes the children from home without seeking the court's recognition. A judge might order that the parent return the children to the family home, pending future proceedings to determine physical custody.

For more articles and FAQ about child custody and visitation, see Child Custody, Child Support & Visitation.

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

Generally, the court will consider a parent's sexual orientation only 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.

However, lesbian, gay, or transgender parents might still experience discrimination from judges who can't set aside their own prejudices when evaluating what's in a child's best interests. These judges might be motivated by their own or community prejudices and might try to conceal the true reasons for their decisions by citing 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 sexual orientation or sexual identity bias, make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights.

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

Is race ever an issue in custody or visitation decisions?

Judges can't consider the race of the parents when deciding custody or visitation. 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 generally has the power to decide when and how much visitation is reasonable. In other words, unless the parents have a specific calendar or schedule, a noncustodial parent's visitation is often affected by the relationship between the parents. When a custodial parent wants the child to have a meaningful relationship with the other parent, it's more likely that the parents will work together to ensure that there's a truly reasonable visitation arrangement.

Unfortunately, an order that one parent is to have "reasonable" visitation can result in the noncustodial parent having to fight for time with the child. To avoid this problem, many courts require parents to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. When parents can't agree, the court will create a schedule for the parents to follow. Standard visitation arrangements often include alternating weekends, school breaks, and holidays that occur during the school year, as well as significant visitation in the summer.

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

Child custody mediation is a non-adversarial process where a trained, neutral professional (called a mediator) meets with parents to help them reach an agreement about custody and visitation. The mediator does not have the power to make decisions for the parties. Instead, the mediator facilitates negotiations and might suggest solutions. Mediation is confidential—what the parties say in mediation can't be used in court.

Mediation is often a better option than litigation (fighting it out in court) for resolving custody and visitation disputes. That's because:

• parents usually don't have to hire lawyers or expert witnesses (or pay their fees)
• mediation usually results in a faster resolution to the disagreement—child custody litigation can drag on for months or even years, and
• mediation encourages communication and makes it more likely that the parents will cooperate when future issues arise.

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.