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Child Custody Basics

When parents divorce, the divorce decree will specify with whom the divorcing couple's children will live (and circumstances under which the other parent will visit with the children). Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests. (For handy reference you can keep with you, download FindLaw's Guide to Child Custody [pdf].)

Physical and Legal Custody

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.

Joint Custody

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Split Custody

Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

Unmarried Parents

When the child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.

Custody Decisions: Factors to Consider

In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests, although that can be hard to determine. Often, the main factor is which parent has been the child's "primary caretaker" (more on this below). If the children are old enough, the courts will take their preference into account in making a custody decision.

Although the "best interest" standard does vary from state to state, some factors are common in the best interest analysis used by the individual states, including:

  • Wishes of the child (if old enough to capably express a reasonable preference);
  • Mental and physical health of the parents;
  • Religion and/or cultural considerations;
  • Need for continuation of stable home environment;
  • Support and opportunity for interaction with members of extended family of either parent;
  • Interaction and interrelationship with other members of household;
  • Adjustment to school and community;
  • Age and sex of child;
  • Parental use of excessive discipline or emotional abuse; and
  • Evidence of parental drug, alcohol or sex abuse.

Determining "Primary Caretaker" of the Child

In addition to the above factors, some states' family courts allow a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of the marriage.  In custody cases, the "primary caretaker" factor became important as psychologists began to stress the importance of the bond between a child and his or her primary caretaker.  This emotional bond is said to be important to the child's successful passage through his or her developmental stages, and psychologists strongly encourage the continuation of the "primary caretaker"-child relationship after divorce, as being vital to the child's psychological stability.

When determining which parent has been the primary caretaker, courts focus on direct care-taking responsibilities, such as:

  • Bathing, grooming, and dressing;
  • Meal planning and preparation;
  • Purchasing clothes and laundry responsibilities;
  • Health care arrangements;
  • Fostering participation in extracurricular activities; and
  • Teaching of reading, writing, and math skills. 

Depending on the state where the custody determination is being made, other factors may be considered as important when determining primary caretaker status.  Even such things as exposure to second-hand smoke and volunteerism in the child's school have been considered in a primary caretaker analysis.  While, in the past, the primary caretaker preference seemed just another way to award custody to mothers, as more and more men share parenting responsibilities, this preference does not necessarily favor mothers.  When it is apparent that both parents have equally shared parenting responsibilities, courts once again will fall back on the "best interest" standard in determining custody.

Next Steps
Contact a qualified child custody attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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