Q: My wife and I just filed for divorce. Who decides who will get custody of our children?

A: Often the answer to the question "who will get custody?" will be determined in large part by the process that is followed by the parties involved in the child custody situation.

In most situations where parents reach an out-of-court agreement on child custody and visitation, the question of "who will get custody" is mostly up to the parents themselves, usually with input from attorneys, counselors, or mediators. If parents in a child custody dispute do not negotiate some form of agreement before going to court, then the custody decision will be made in court, usually by a family court judge.

Q: If my child custody case goes to family court, how will the judge decide who gets custody?

A: In deciding who will have custody, the court will consider a number of factors, but the main 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." If the children are old enough, the courts will take their preference into account in making a custody decision. 

Q: A friend who has gone through a custody dispute told me that the judge in his case placed a lot of importance on determining who the children's "primary caretaker" was. What is a "primary caretaker"?

A: 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, including grooming and dressing; meal planning and preparation; health and dental care arrangements; and teaching of reading, writing, and math skills.