How Child Custody Decisions Are Made

 If you're a close relative or family friend of a child who's not yours, you may wonder if it is even possible to get custody of that child.

There are several important issues to consider when determining child custody rights. If you're going through a divorce, you'll want to know whether your child will live primarily with you. Or, whether you can make important decisions about how to raise your child.

Parents new to the child custody system may have several questions. How are child custody decisions made? What is the difference between legal custody and physical custody? Who makes the custody determination?

The following is a brief discussion about deciding child custody arrangements.

Divorce and Child Custody Decisions

If you're a parent considering divorce, or if you are already involved in the process, you are probably wondering how to resolve child custody and visitation issues. In general, either agreement between the divorcing couple (usually with the help of attorneys and mediators) or the court will decide on child custody and visitation.

More specifically, custody and visitation decisions typically are resolved in one of two main ways in a divorce:

  1. The parents agree on child custody and visitation. They can do so through informal settlement negotiations or out-of-court alternative dispute resolution proceedings like mediation or "collaborative law" (usually with the help of attorneys).
  2. The court decides on child custody and visitation (usually a family court judge). Ultimately, the decision-making authority is the court in these cases. The court will look at a variety of relevant factors in the best interest of the child. The court will then make a custody determination based on the best interest of the child.

Unmarried Parents and Child Custody Decisions

The rights of unmarried parents in child custody may depend on whether both are legally recognized as the parents of the child. If the parents are not married, the parents may have to acknowledge the father's paternity. If the father's paternity is not voluntarily acknowledged, the court may have to establish paternity with a DNA test.

Generally, both parents have a legal right to be part of their child's life. This includes parenting decisions for important issues like education, health care, and religion. It is generally best for everyone if the parents can agree to a child custody and visitation arrangement out-of-court. This allows the parents to work out an agreement that works best for them, without relying on a judge. If the parents can't agree or mediation does not work, a family court judge must decide the case.

The Best Interest of the Child Standard

The court may prefer to give both parents shared custody (“joint custody"). In some cases, primary custody of one parent with visitation rights by the other may be in the best interests of the child. The court may order the non-custodial parent to pay child support. But the custody order may also entitle the non-custodial parent to parenting time.

The court may use several factors for making child custody decisions, including:

  • The child's needs (physical, emotional, educational, and special needs)
  • The stability and continuity of the child's home life, education, and community life
  • The availability of extended family
  • Any history of child abuse, sexual abuse, or domestic violence
  • The child's preference (usually given more weight with older children)
  • The mental health and physical health of both parents
  • The child's age
  • The child's relationship and emotional ties to either parent
  • Each parent's ability to care for the child (which can include providing medical care)

Ultimately, the court will base its decision on what it believes best serves the child's best interest. This places the child's well-being at the center of the custody issue.

Non-Parental Child Custody Decisions

Other relatives or important people in the child's life may also have an interest in making sure the child is well cared for. Non-parents wanting to take custody of a child may include stepparents or grandparents. It also might include other family relatives, particularly if they've cared for the child.

In some cases, relatives or other individuals, or agencies may file for custody rights of a minor child. This generally requires showing the child is in danger or that the parent is unfit or has abandoned the child. If a non-parent files for custody, the court will decide if the parents are unfit or whether the non-parents can take temporary custody.

Stepparents generally do not have legal rights (or responsibilities) over their spouse's child. For a stepparent to have custody and visitation rights, the stepparent would have to adopt the child. This generally requires having one of the parents give up their parental rights so the child can be adopted.

In some states, grandparents may be granted visitation rights. For example, in North Carolina, an order for custody of a minor child may provide visitation rights for a grandparent where there is a "substantial relationship."

Types of Custody Awarded

The court can award several different types of child custody arrangements. Courts may order joint custody, which usually means the parents have both joint legal custody and joint physical custody. The court may also order sole legal custody or sole physical custody to one parent. The type of custody awarded will depend on your situation and the court's decision.

For more information, visit FindLaw's Types of Child Custody page.

Questions About How Child Custody Decisions Are Made? Talk to an Attorney

If you're going through a child custody battle with your co-parent, you'll want to know the child custody laws. You'll also want to know how decisions about your child will be made. Family law and custody matters can be complex and emotions are usually already high.

A child custody attorney can help you navigate your custody case. They can provide valuable legal advice and represent you in child custody cases. Family law attorneys can help you draw your custody agreement and resolve your custody dispute.

Reach out to a local child custody attorney for help today.

Was this helpful?

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.

Find a local attorney

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