By FindLaw Staff | Legally reviewed by Hal Armstrong, Esq | Last updated December 30, 2021
A divorce or legal separation can be an incredibly difficult process for parents, but adding a custody determination to the process can make it even more devastating. Courts generally consider the child's own best interests above all else when making decisions, but that does not mean those decisions are easy to make. Below are a few important factors courts consider when determining who gets custody of a child.
One of the first steps in determining who will get custody of a child is understanding 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.
Often the answer to the question "who will get custody?" will be determined in large part through a process that is undertaken by the parties involved in the child custody situation. Final decisions are usually made by the parents, the court, or a combination of both.
The Parents as Decision-Makers
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 from 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 a custody agreement outside of court, and they are able to arrange a suitable living and visitation schedule, then there is no predetermined answer as to who will get custody. 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, and the parents agree to work together on major decisions related to the 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 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 easy to predict, but most courts follow a certain procedure, adhere to a number of common principles, and look to a standard set of considerations when making child custody decisions.
Regardless of whether the custody decision is a result of the parents' agreement or a court's decision, several factors 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 interest?" are of chief concern to the judge making the custody decision. The judge will also typically take a number of other factors into account, including the child's own preferences, in some cases.
Even if parents attempt to resolve a child custody and visitation dispute through negotiation and settlement outside of court, having these same considerations and factors in mind in trying to come to an acceptable agreement will be helpful, if for no other reason than to keep the negotiations focused on reaching outcomes that are in their children's best interest.
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, especially if they have acted as caretakers of the child.
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 or what that custody arrangement looks like. There are many factors to consider in these determinations, but the court's primary concern will be 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.
Contact a qualified child custody attorney to make sure your rights are protected.
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