Custody Considerations: Step-By-Step

A divorce or legal separation can be an incredibly difficult process for parents. Adding a custody determination to the process can make it even more devastating. Courts generally consider the child's best interest above all else when making custody decisions.

Below are a few important factors courts consider when determining who gets custody of a child.

#1: Type of Arrangement

It's important to understand your options about different types of custody arrangements. There are several different types of custody. For example, you and the child's other parent may wish to work out an arrangement under which you both decide on the child's upbringing and welfare. This is called "joint legal custody" in most states.

You may feel that your child's other parent is currently unfit or incapable of any parental responsibility. In this case, you may pursue “sole custody" of your child. You might try to get both sole legal custody and sole physical custody of your child. This might happen when the co-parent suffers from substance use disorder or has committed child abuse or domestic violence.

You will want to consider which type of custody arrangement is best for you and your child.

#2: The Decision-Maker: Parents or the Court

The court will make the ultimate decision on child custody. The court will always make determinations in the best interest of the child.

Parents as Decision-Makers

Parents can reach an out-of-court agreement on child custody and the visitation schedule. Usually, this is done with the help of attorneys, counselors, or mediators. An out-of-court custody agreement can be the result of informal settlement negotiations. Or it could be the result of alternative dispute resolution proceedings, like mediation. In some states, divorcing couples must attempt to resolve custody disputes through mediation.

The parents are generally free to agree to whatever workable arrangement they choose. The parents may agree to a true joint custody arrangement in which their children split time living with each parent. In these situations, the parents agree to collaborate on major decisions about children's upbringing and welfare. Alternatively, 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 don't come to an agreement, the custody decision will be made in court. A family court judge usually makes this determination. The courts usually follow a certain procedure and adhere to common principles. They will look to a standard set of considerations when making child custody decisions.

#3: Factors and Preferences Affecting the Decision

Several factors typically weigh on the decision-making process. In almost all family court cases where child custody is at issue, the court will consider the child's best interest. The judge will typically take several factors into account during the custody proceedings.

Ultimately, the court looks to ensure the safety and well-being of the child. The following are some factors considered when making a custody decision in the best interest of the child:

  • The child's age
  • The child's wishes (if the child is old enough, according to state law)
  • The parent's ability to care for the child, like providing a stable home and childcare
  • The mental health and physical health of the child and the parents
  • The child's needs, including any special needs
  • Whether either parent has any substance abuse issues or a history of child abuse or domestic violence

In child custody cases, the court will consider all of these factors to create the parenting plan and custody order. The court will also consider these factors when deciding on the visitation rights of the co-parents or their families.

When one parent is deemed unfit, they may lose their parental rights and become the non-custodial parent. The non-custodial parent may be ordered to pay child support through a court order to the custodial parent.

Custody Considerations in Non-Divorce Cases

Custody disputes can arise between unmarried parents. Grandparents can seek to enforce their rights to visitation with their grandchildren. In rare cases, relatives or others who have a close relationship with a child may seek to be awarded custody, especially if they have acted as caretakers to the child.

Get Legal Help With Child Custody Today

You might not agree on who gets custody of the child or what that custody arrangement looks like with your co-parent. There are many factors to consider in these determinations, but the court's primary concern will be the best interest of the child.

A family law attorney can help you through the difficult family court process. They can help give you valuable legal advice about custody laws. They can help you obtain temporary orders and resolve custody issues.

Seek guidance from an experienced family law attorney about custody matters today.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
  • An attorney will advocate for your rights as a parent

A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

Start Planning