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Deciding Who Gets Custody FAQs

In an ideal world, divorcing or separating parents would be able to set aside their differences to decide together on the best child custody option for their child. But sometimes it doesn't work out that way and the court must make a decision in the child's best interest.

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: Most often, the answer to the question "Who decides who will get custody of the children?" is "The parents."

In most situations, parents are able to reach an agreement themselves and they are the ones who decide child custody and visitation (although there is a possibility that the court may not approve or may modify their agreement if it feels it is contrary to statutory requirements or the child's interests).

If parents are not able to reach an agreement between themselves, most courts will require that they attempt to negotiate an agreement, usually through mediation with input from their attorneys.

If the parents still are unable to reach an agreement, then a 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: The child's "best interest" is the most important custody concern. The family court judge will consider a wide range of factors, including household stability, the child's relationships with the parents, the health of the parents, income, and many other factors.

Psychologists have stressed the importance of the emotional bond between a child and their primary caretaker. This bond is said to be important to the child's successful passage through developmental stages and vital to the child's psychological stability. Psychologists strongly encourage the continuation of the primary caretaker-child relationship after divorce.

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
  • Teaching of reading, writing, and math skills
  • And more

Q: What about the child's preferences? Will they be considered?

A: If the child is old enough, the judge may take the child's preference into account in a custody decision. Of course, actual court practices can vary.

In Utah, for example, the statute specifically allows a judge to ask a child's preference, and if the child is over age 14, states that the child's preference shall be given greater weight. But the child's preference is not the controlling factor.

Q: I'm the father of a six-month-old boy. His mother and I were never married. What can I do to get custody of my son?

A: American society has changed in response to the changing roles of men and women. The laws have changed, too. In many, if not most states, there is no legal basis for bias against unwed fathers. Such a bias would discriminate against a child's right to a relationship with their father.

Utah, for example, has adopted the Uniform Parentage Act, which provides that: "A child born to parents who are not married to each other, whose paternity has been determined under this chapter, has the same rights under the law as a child born to parents who are married to each other."

The real issue to overcome in your situation with a child as young as six months of age is showing that you, not the mother, are the primary caretaker, particularly if the child is nursing. If the mother is a good parent and the primary caretaker, it's going to be difficult for a father to win custody, regardless of marital status.

Even if you can't get physical custody of your son, you should be able to obtain shared legal custody which gives you the right to make important decisions about your son's upbringing and welfare.

That said, you may be able to get physical custody if you can establish that your son's mother is unfit for parenthood or is incapable of taking care of him, especially if you can show that you are the child's "primary caretaker."

In any case, an unmarried father can take steps to secure some form of child custody or visitation rights to ensure he has an ongoing relationship with his child.

Q: Can anyone other than a parent get custody of a child?

A: In the situation where parents are getting separated or divorced, it is not typical for someone else to step in to take custody.

In cases where the parents are unable to meet their parental obligations — such as military duty outside of the country, incarceration, or illness — then, yes, someone other than a child's parents can obtain custody. Most often this is a relative: grandparents, siblings, aunts, and uncles. It could also be a close family friend.

Some states label such a situation as "non-parental" or "third-party" custody. Other states refer to these situations as "guardianship" rather than custody.

Q: How can I get professional help in deciding who gets custody in my case?

A: An experienced family law attorney can not only answer questions about your child custody case but can also be your strongest advocate in court. The best way to get started is to look for a family law attorney near you with experience handling custody disputes.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

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

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  • Custody & child visitation cases are emotional, and a lawyer can seek the best outcome
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