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Deciding Who Gets Custody FAQs

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.

Q: I am the father of a six-month old boy. His mother and I never married, and I am wondering what I can do to get custody of my son. What are my options?

A: In most states, an unwed father often cannot win custody over a mother who is a good parent. But, if you can establish that your son's mother is unfit for parenthood or is incapable of taking care of him, you may be able to get physical custody, especially if you can show that you are the child's "primary caretaker." Even if you cannot get physical custody of your son, you should be able to obtain shared legal custody, giving you the right to make important decisions about your son's upbringing and welfare. In any case, an unmarried father can take steps to secure some form of custody or visitation rights, and ensure an ongoing relationship with his child.

Q: Can anyone other than a parent get custody of a child?

A: In some cases, people other than a child's parents may wish to obtain custody -- including relatives like grandparents, aunts, uncles, close family friends, or other people who wish to get custody of a child. Some states label such a situation as "non-parental" or "third-party" custody. Other states refer to the third-party's goal in these situations as seeking "guardianship" of the child, rather than custody.

Q: How can I get a free review my custody case?

A: Quality counsel is rarely free and there is some truth to the mantra that you get what you pay for. However, you can have an experienced family law attorney give you an initial review of the details of your child custody situation for free, with no obligation.

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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