One of the most difficult processes for parents to undergo is the custody determination by a court, typically after a divorce or legal separation. Courts generally consider the child's own best interests above all else, but this is a difficult choice in many cases. Below are a few important factors considered by courts when determining who gets custody of a child.
Consideration #1: Type of Custody Arrangement
One of the first steps in determining who will get custody of a child is to understand your options regarding different types of potential custody arrangements. For example, you and the child's other parent may wish to work out an arrangement under which you both make decisions on the child's upbringing and welfare. This is called "joint legal custody" in most states. Or, you may feel that your child's other parent is currently unfit or incapable of any parental responsibility, in which case you may wish to pursue "sole custody" of your child.
Consideration #2: The Decision-Maker (Parents or the Court)
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.
The Parents as Decision-Maker. 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. An out-of-court custody and visitation agreement can come as a result of informal settlement negotiations, or after the parents participate in out-of-court alternative dispute resolution proceedings like mediation or collaborative law. In some states, divorcing parents are required to attempt resolution of custody disputes through mediation.
If divorcing parents can come to an agreement outside of court on custody of their children, and they are able to arrange a suitable living and visitation schedule, then there is no set answer as to who will get custody. The parents may agree to a true joint custody arrangement in which their children split time living with each parent, and agree to work together on major decisions related to the children's upbringing and welfare. Or, the parents may agree that the children will live primarily with one parent, but there will be a generous visitation schedule for the other parent.
The Court as Decision-Maker. 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. An answer to the question of "who will get custody" is not easily predicted, but in making child custody decisions most courts follow a certain procedure, adhere to a number of common principles, and look to a standard set of considerations.
Consideration #3: Factors and Preferences in the Custody Decision
Regardless of whether the custody decision is made by the parents' agreement or through a court decision, there are a number of factors that typically weigh on the decision-making process.
In almost all family court cases where child custody is at issue, considerations such as "Who is the child's primary caretaker?" and "What is in the child's best interests?" are of chief concern to the judge making the custody decision. The judge will also usually take a number of other factors into account, including the child's preferences in some cases. Even if the parents attempt to resolve a child custody and visitation through negotiation and settlement outside of court, it will help to have these same considerations and factors in mind in trying to come to an acceptable agreement, if for no other reason than to keep the negotiations focused on reaching outcomes that are in their children's best interest. Learn more:
Considerations in Non-Divorce Cases
While child custody and visitation issues arise most often as part of a divorce, parents going through a divorce are not the only people who might be involved in a child custody situation. Custody disputes can arise between unmarried parents; grandparents can seek to enforce their rights to visitation with their grandchildren; and in rare cases relatives or others having a close relationship with a child may seek to be awarded custody.
Child Custody is a Difficult Process: Get Legal Help
If you and your spouse are getting divorced, or never tied the knot in the first place, you might not agree on who gets custody of the child and when. There are a lot of moving parts to this determination, but the court is solely responsible for the child's own best interests. One of the best ways to get a handle on the process is to seek guidance from an experienced family law attorney.