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How Child Custody Determined?

Going through a divorce is already incredibly stressful, and that’s even more so the case when children are involved.

Child custody cases are emotionally and financially draining.

If you’re wondering how custody is determined, the first big thing to note is that it varies by state, although there are some general commonalities.

It’s also important to realize that in the past, custody decisions most often favored mothers, but that’s not the reality currently. There have been a lot of shifts in how the courts view custody and what’s best for children, which doesn’t automatically mean a mom gets sole custody.

Some of the factors that could play a role in child custody include:

Best Interests Of The Child


There’s often a term used in child custody cases, which is in the best interest of the child, but exactly what that means can be somewhat ambiguous.

In general, what the best interests of the child means is that all custody and visitation decisions are made thinking about a child’s happiness, emotional development, security, and mental health first and foremost.

The standard is typically to assume that it’s in a child’s best interests to have a strong relationship with both parents unless there’s a situation that would make that impossible.

Factors That Determine The Best Interests of a Child

Some of the many factors that may be used to determine the best interests of a child include:

  • A child’s wishes, if the child is old enough to indicate their preference
  • The parents’ mental and physical health
  • Whether or not a child has special needs and how each parent manages those
  • Religious considerations
  • The need for stability
  • Other children who are involved in the custody arrangement, such as step- or half-siblings
  • Support from extended family
  • A child’s age and sex
  • Whether a parent has a history of abuse or substance misuse
  • The emotional bond that exists between a parent and a child
  • The ability of one or both parents to provide for a child’s basic needs like food and shelter
  • Established living patterns
  • The quality of a child’s education

If all of the above factors are similar to one another between both parents, then a court might focus on who can provide a stable environment and who’s going to be more likely to put effort toward fostering a strong relationship with the other parent.

It might also be relevant who’s been the child’s primary caregiver to the point of a custody decision.

Types of Custody

It’s almost always better for families to try and come to a custody agreement out of court because that lets them be the ultimate decision-makers as far as what works best for them.

However, if you can’t come to an agreement and you go to court, there are usually a few types of custody arrangements that might be granted.

Sole legal and physical custody may be given to one parent.

Another option is sole physical custody to one parent and joint legal custody.

A judge could order joint physical and legal custody or sole legal custody and joint physical custody although the last option is rare.

If one parent gets sole physical custody, a judge will usually then outline a visitation schedule to encourage the cultivation of a strong relationship with the parent who doesn’t have physical custody.

When a judge makes a decision as far as child custody, that has to be followed, even if you don’t agree that it’s best.

Custody Doesn’t Always Go to Just One Parent

There tends to be a misconception that if you do go to court, custody will be awarded to just one parent.

That tends not to be so common.

Often joint custody is awarded, which was briefly touched on above.

Joint physical custody means that children spend substantial time with both parents. Joint legal custody means that parents both have a say in decisions like health care and education. Often, both joint legal and physical custody is awarded.

There are also states that require joint custody unless it would otherwise compromise a child’s well-being.

Finally, if you are divorcing, it can negatively affect your court case if you move out and leave your children with the other parents. That would be an indication to a court that you feel the other parent would be a good caretaker. It’s not always optimal to stay in an environment where things are unpleasant, but it can later affect your custody outcome, so be mindful of that.


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