Deciding Who Gets Custody FAQs

Below are answers to some of the most frequently asked questions (FAQs) regarding who gets child custody.

My Spouse and I Just Filed for Divorce. Who Decides Who Will Get Custody of Our Children?

The parents and the court. If you and your ex can't come to a mutual custody agreement, the court will step in. The family court may need to approve or modify the agreement. This may happen regardless of the parents' agreement. If parents cannot reach an agreement themselves, most courts will require that they attempt to negotiate an agreement. This will usually occur through mediation, with input from their attorneys. If the parents still are unable to reach an agreement, then the court will make a custody decision, usually a family court judge.

Ultimately, the court will issue the final child custody orders. These orders will detail who has legal custody and physical custody of the child. The parent with legal custody is responsible for decision-making. The parent with physical custody is with whom the child lives.

If My Child Custody Case Goes to Family Court, How Will the Judge Decide Who Gets Custody?

The child's "best interest" is the most important custody concern. The family court judge will consider a wide range of factors. Ultimately, this standard helps ensure the child's safety and well-being. Examples of relevant factors include:

• The child's wishes (if the child is old enough according to state law)

• The child's age and the child's needs (including any special needs, such as medical care)

• The physical health and mental health of each parent

• The parent's ability to provide childcare

• The child's relationship with the parents

• Any history of child abuse or domestic violence

• Any evidence of substance abuse or alcohol abuse

Most courts find that awarding joint custody is in the best interests of the child. This is an arrangement where parents share parenting time and collaborate on major decisions. They share parental responsibility for their child.

If a court finds that one parent is “unfit," the other parent may get full custody or sole custody of the child. This parent will be the “custodial parent," while the other parent is the “non-custodial parent." The court may order the non-custodial parent to pay child support.

Are Mothers More Likely To Get Custody of a Child Than Fathers?

Although it has not always been so, today's courts will generally award custody to whichever parent would be in the best interests of the child. But in the past, custody of young children (typically under 5 years old) usually went to the child's mother if the parents divorced. This rule has been phased out in almost every state. Instead, based on the case's merits, judges must decide which parent having custody would be in the child's best interests.

These days, men and women commonly enter the workforce full time. The custody decision could be as simple as who has been the child's primary caretaker or which parent could spend the most time with the child, all other factors being equal.

For example, if a father works from home while the mother works a 60+ hour a week job as a corporate attorney, a judge may decide that the best interests of the child are to be with the parent who can spend the most time with the child. This would be the father in this example. Also, it's important to note that fathers are just as willing and able to be parents as mothers, and they can present that argument in court.

Do Courts Consider Race a Factor in Child Custody Hearings?

No. Courts aren't allowed to consider race as a factor when deciding the best interests of the child and determining which parent will be getting custody of the child.

What About the Child's Preferences? Will They Be Considered?

If the child is old enough, the judge may consider the child's preference 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. If the minor child is over age 14, the judge will give greater weight to their preference. But the child's preference is not the controlling factor. In Florida, there is no minimum age for considering a child's wishes to decide custody.

I'm the Father of an Infant. His Mother and I Were Never Married. What Can I Do To Get Custody of My Child?

American society has responded to changes in the 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 this situation with an infant child is to show that you, not the mother, are the primary caretaker. This is particularly so 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 child, you should be able to obtain shared legal custody. This will give you the right to make important decisions about your child's upbringing and welfare.

That said, you may be able to get physical custody. You can establish that your child's mother is unfit for parenthood or incapable of caring for them. You can also 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.

Are There Any Special Custody Considerations for Gay and Lesbian Parents?

Based upon Obergefell v. Hodges, a gay parent's rights and obligations concerning marriage and divorce should be the same as those of heterosexuals. This principle extends to child custody.

However, some state legislatures and courts have resisted Obergefell. Some judges may impose their own community expectations and biases onto a custody dispute involving gay and lesbian parents. It is often the case that a judge will weigh various factors in favor of a non-gay or non-lesbian parent when considering the best interests of the child and who will be getting custody of the child.

Can Someone Other Than a Parent Get Custody of a Child?

Yes. It's rare, but it can happen. Some states label this situation as "non-parental" or "third-party" custody. Other states refer to these situations as "guardianship" rather than custody.

In cases where the parents are unable to meet their parental obligations, someone other than a child's parents can obtain custody. This may include military duty outside of the country, incarceration, or illness. They must still go to court and get a custody order. Most often this is a relative: grandparents, siblings, aunts, and uncles. It could also be a close family friend.

How Can I Get Professional Help in Deciding Who Gets Custody in My Case?

An experienced family law attorney can not only answer questions about your child custody case but be your strongest advocate in court. The best way to get started is to find a family law attorney with experience handling child custody disputes. These attorneys can help fight for your parental rights in the parenting plan. They can help you get a final court order for your child custody dispute.

Get Legal Help With Your Child Custody Case From a Child Custody Attorney

Getting child custody can be a long and emotionally-taxing process. Navigating the family court is already hard. An experienced child custody attorney can help you tremendously during this process. They can provide you with valuable legal advice and help argue for your parental rights in your custody arrangement. They will help you interpret the child custody laws of your state.

Talk to a child custody lawyer today.