Deciding Who Gets Custody FAQs

In an ideal world, divorcing or separating parents would be able to set aside their personal differences and decide -- together -- the best custody option for their child(ren). But it doesn't often work out so smoothly, which leaves it up to the court to make the best decision on behalf of the child's own best interests. When deciding who gets custody of the children, courts consider a wide range of factors including household stability, relationships with the parents, and income.

Below are answers to some of the most commonly asked questions regarding who gets custody.

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 matter of who gets 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'm 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're the child's "primary caretaker." Even if you can't 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 professional help in deciding who gets custody in my case?

A: Quality counsel is vital especially when facing the question of who gets custody of your children. An experienced family law attorney can not only answer questions about child custody in your case, but can also be your strongest advocate, both with opposing counsel and the court. The best way to get started is to look for a family law attorney near you with experience handling custody disputes.

Next Steps

Contact a qualified child custody attorney to make sure your rights are protected.

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