Preference for the "Primary Caregiver"

Parents who are splitting up may both seek and be awarded physical custody of their child(ren). In an ideal scenario, each parent would come to an agreement together, without battling the matter out in court. However, divorce and child custody battles are often complex and 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," and instead consider factors in 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 addresses the standards the court applies today in determining the child custody arrangement in a divorce.

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 what is best is 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, and award custody accordingly:

• The child's age;
• The child's wishes (if he or she is old enough);
• The parents' physical and mental health;
• The parents' and child's religious preferences;
• Need for the continuation of 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 or emotional abuse; and
• Evidence of parental drug, alcohol, or sexual abuse.

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;
• Meal planning and preparation;
• Purchasing clothes and laundry responsibilities;
• Health care arrangements;
• Fostering participation in extracurricular activities;
• Teaching reading, writing, and math skills; helping with homework;
• Conferencing with teachers; attending open houses; and
• Planning and participating in leisure activities with the child.

These factors may or may not be considered by the court, but other factors (such as the factors of the child's best interest above) 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, and gender roles have shifted. 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 physical custody. As you can see, where courts are needed to resolve these disputes, they will look to many factors to determine how to best establish custody for the child.

An experienced family law attorney understands these factors and the preference for the primary caregiver and can help you make the strongest case possible for custody of your children.