Who Gets Custody

Determining the primary caretaker is a major factor in deciding who gets custody of a child. The primary caretaker is the parent who not only does the majority of childcare tasks, such as shuttling to school or cooking meals, but also has the closest emotional bond with the child. 

One of the biggest questions in a child custody case is, "Who will get custody and visitation rights?" Many factors come into play when answering this crucial question. But there are some general guidelines and considerations that come into play when the court decides on child custody.

Choose a link from the list below to learn more about how a family court arrives at a child custody ruling. This section looks at the common factors a family court will consider in determining custody and the child's best interests. Below you can also find links to helpful FAQs.

Determining the Child's Primary Caretaker

If the two parents can independently come to a mutually agreeable decision, the courts need not intervene. The court will simply approve any reasonable plan.

However, when there is a dispute, courts will consider many factors to decide the primary caretaker. Specifically, the court will want to know which parent handles the following types of parenting tasks:

  • Bathing and grooming
  • Planning and cooking meals
  • Deciding health care and medical care
  • Teaching basic skills, such as reading, and helping with homework
  • Planning and participating in recreational activities

It's important to note that being a primary caregiver doesn't necessarily mean that you will have full custody of your child. You may, however, be more likely to get primary physical custody of your child. Ultimately, the court will make this decision using the best interests of the child standard.

The Best Interests of the Child

The court must find a solution in the child's best interests. While this may sound vague, it means that all custody decisions should have the goal of promoting the child's happiness, mental health, emotional development, and security. In other words, a parent's preference should not take priority over what is actually best for the child.

Courts will consider the following factors in a child custody case when determining the child's best interests:

  • The physical and mental health of the parents
  • The needs of the child, including any special needs
  • The need for a stable home environment
  • The child's preferences (if old enough to express them)
  • The ability of each parent to care for the child
  • The child's relationship with each parent
  • The interactions and relationships with other members of the household
  • Any evidence of substance abuse, alcohol abuse, child abuse, or domestic violence
  • Any adjustment to the community

These factors are considered together. The court will make a decision that ultimately supports the safety and well-being of the child.

Different Types of Custody Arrangements

The court can order several different types of custody arrangements. Generally, courts will try to give co-parents a joint custody arrangement. In these situations, parents share joint legal custody and joint physical custody. Legal custody refers to the ability to make important decisions about the child's life. This might include decisions about health care, education, or the child's upbringing. Physical custody refers to where a child lives on a day-to-day basis.

If the court finds that one parent is “unfit," the custody order may give the other parent sole legal custody and/or sole physical custody of the child. The unfit parent is considered the non-custodial parent. The court may order this parent to pay child support to the custodial parent. Even if they don't have custody rights, these parents are usually entitled to parenting time in the parenting plan. For couples who are not married, the courts tend to give physical custody to the parent the child already lives with. If this is the mother, the father typically must request a different arrangement for the court to alter it.

Ultimately, the court is the final decision-making authority regarding child custody.

Custody in Non-Divorce Cases

Child custody cases are not always linked to divorce. Custody disputes also can arise between unmarried parents or among close relatives. There also may be non-divorce cases involving the visitation rights of grandparents.

As a general rule, most states require that an unmarried mother is automatically awarded full custody of her child—unless the father also makes an effort to receive custody. Otherwise, the court decides child custody in non-divorce cases in much the same way as divorce cases.

Most states have specific procedures for awarding a grandparent or other close relative custody of a child. Typically, the individual must file a non-parental custody petition, a copy of which must also go to the child's parents.

Getting Legal Help with Child Custody Cases

Parents undergoing a custody battle should consult with a family law professional. Child custody attorneys can give valuable legal advice to help you with custody issues. They will advise you on your parental rights and the custody laws of your state. They can help you protect your legal rights and draw a parenting agreement. Consider talking to a family law attorney today.

Click on a link below to learn more about who gets custody of a child and how the court makes this determination.

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