How Courts Determine Child Custody

Predicting How the Judge Will Rule in Your Child Custody Case

Father comforting son
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Question: In situations where only one parent gets child custody, how do the courts decide who that will be?

Answer: The first thing to know is that there are two types of child custody -- legal and physical -- and both can be sole or joint. Legal custody refers to the authority to make important decisions about your children's upbringing. This includes where the children will attend school, what activities they will be involved in, and what religion they will be exposed to. Physical custody refers to where the children live. Parents granted physical custody are often referred to as "custodial parents."

In cases without allegations of child abuse or neglect, many judges choose to grant both parents legal custody and give only one parent primary physical custody. This allows the children to have one "home base" where they live while still spending time with both parents. In such cases, the non-custodial parent is granted regular visitation, which is sometimes referred to as "parenting time." This arrangement allows both parents to share in important decisions while recognizing the children's need for consistent living arrangements. In many cases, the children will spend extended visits with the non-custodial parent during the summer.

To determine custody, courts in nearly every state use a standard referred to as "the best interests of the child." This means that the judge will rule in favor of the child custody arrangement that, in his or her opinion, best suits the children’s needs, based on a variety of factors. The individual factors each judge considers are determined by state statutes, which typically include:

  • Each parent’s ability to care for the children and provide a safe, stable environment
  • Each parent's ability to provide basic necessities, including: food, shelter, clothing, education, and medical care
  • Each child’s age, gender, and overall health
  • Each parent’s mental and physical health
  • Each parent’s lifestyle choices (Are there allegations of abuse or domestic violence? Is one parent a heavy drinker or smoker?)
  • The emotional bond between each parent and the children
  • The children's current routine and living arrangements
  • The potential impact of changing the children's routine/living arrangements
  • The quality of the children's current school system
  • The children's expressed preferences, which may be considered depending on their age 

Anticipating the Judge's Ruling in Your Case

It's impossible to accurately predict how individual judges will rule in child custody hearings. In cases where the children are young, it's fair to say that judges are generally reluctant to alter the children's routine without just cause. For this reason, some judges may favor the parent who has been the primary caregiver thus far, but that should never be considered a hard-and-fast rule. 

Other times, judges will weigh the factors outlined above and find the parents equally fit. In such cases, the judge may grant physical custody to the parent who is deemed more likely to provide a stable environment while fostering a loving relationship with the other parent. This is because family court judges (generally) prefer to rule in a way that maximizes the children's access to both parents. At times, this means ruling in favor of the parent deemed more cooperative, as opposed to "more fit" or qualified as a parent.