Preference for the 'Primary Caregiver'

Parents who are splitting up may both seek and be awarded physical custody of their child. In an ideal scenario, the parents would come to an agreement together without going to court. 

However, divorce and child custody battles are often complex. They can be difficult for the couple to sort out on their own. The court may be tasked with figuring out the appropriate custody arrangement for the child.

There are many factors the court must consider when determining how to handle child custody in a divorce. Courts have increasingly been moving away from favoring the child's "primary caregiver." Instead, they focus on the "child's best interest." This standard often advocates for equal involvement from each parent in the child's life. Some states, like Kentucky, have even codified the 50-50 custody option in legislation.

This article is an overview of the standards the court applies in determining the child custody arrangement.

The 'Child's Best Interest' Standard

In custody cases, most states give preference to the "child's best interest." This standard looks at the child holistically to protect their overall well-being. Most states have come to believe that it is best for both parents to be actively involved in their child's life. When using this standard, the court does not automatically prefer one parent over the other. However, if one parent displays harmful behaviors that negatively affect the child, the court may determine that this parent will have less than 50-50 custody.

The court will look at several different factors to determine what is in the best interests of the child. The court will consider the following factors to make the custody determination for the custody order:

  • The child's age
  • The child's wishes or the child's preferences (if they are old enough)
  • The child's relationship with either parent
  • The parents' physical health and mental health
  • The parents' and child's religious preferences
  • The need for continuing a stable home environment
  • Support and opportunity for interaction with members of the extended family of either parent
  • Interaction and interrelationship with other members of the household
  • Adjustment to school and community
  • Parental use of excessive discipline, emotional abuse, or domestic violence
  • Evidence of parental drug, alcohol, or sexual abuse

If the court determines that joint custody is not the right option for the child, the family court judge may award sole custody to one parent. The court may consider this parent the primary caretaker of the child, and they will have primary physical custody of the child. They might also obtain legal custody of the child. The judge may order the noncustodial parent to pay child support to financially support the child.

Moving Away From the 'Primary Caregiver' Doctrine

Many courts are moving away from applying the "primary caregiver" doctrine. This doctrine presumed judicial preference for the parent who provided most of the child care. Some factors considered to determine the primary caregiver include:

  • Bathing, grooming, and dressing
  • Planning and preparing meals
  • Purchasing clothes and laundry responsibilities
  • Health care arrangements
  • Fostering participation in extracurricular activities
  • Teaching reading, writing, and math skills and helping with homework
  • Conferencing with teachers, attending open houses
  • Planning and participating in leisure activities with the child.

The court may consider these factors. But other factors (such as the child's best interest) are more important to courts today. To see how your state handles child custody, view a list of state custody summaries.

In fact, courts across America have moved toward equal 50-50 parenting as modern families prefer shared parenting. There are a growing number of courts finding that shared time between both parents serves the best interest of the child.

Protect Your Child's Interests With an Attorney's Help

Even in an agreeable separation, one area where there is often a dispute is the custody of the child. The court will look at various factors to make a custody decision. However, the court is moving away from considering who is the primary caretaker. Instead, the court focuses on the best interests of the child.

An experienced family law attorney can help you in your child custody case. They can advise you by giving valuable legal advice and taking child custody law into account. They can help advocate for your parenting time or visitation rights if you are a noncustodial parent. They can also help represent you in custody proceedings before the family court.

Many law offices offer free initial consultations, so speak to a family law attorney about your custody dispute 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.

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