When you divorce and have children, your divorce decree will state which parent is to be granted custody. Custody determines with whom your children will live and the circumstances under which the parent not granted custody will be allowed to visit.

Parents will often work out custody and visitation arrangements between themselves. This is accomplished in one of two ways: either decided between you and your spouse separately from the divorce process, or using your attorneys or a mediator to assist with the decision.

If you cannot agree who will get custody of your children, the court will then intervene to make a decision based on the child’s best interests.

Types of Custody

There are four main types of custody that you may be awarded during the child custody portion of the divorce process.

1. Physical Custody

Physical custody is the most common type of custody awarded during divorce proceedings. Physical custody is awarded to the one parent who the children will be living with the majority of the time. The parent awarded physical custody of the children (aka the custodial parent) will most likely have to share what is known as “legal custody” with the non-custodial parent.

2. Legal Custody

Legal custody means that you are legally obligated to be included in all decisions relating to the children’s education, religion, health care, and other life affecting concerns. It should be pointed out that in the case of a medical emergency, the “legal custody” right may be disregarded (although the other parent should definitely be notified as soon as possible) if not doing so would put the children in further medical jeopardy.

3. Joint Custody

Some parents may choose a joint custody arrangement, which is when the children spend an equal amount of time living with both parents. This type of custody arrangement does have its pluses and minuses, however. Supporters of joint custody say it lessens the feeling of loss that children may experience during a divorce. Its detractors, however, think it best for children to live mainly with one parent in order to maintain a sense of “home,” but allow plenty of visitations for the non-custodial parent. Courts are usually hesitant to grant joint custody of children due to the high degree of cooperation that is required between the parents.

4. Split Custody

The last custody type is also the least favored: split custody. With split custody, one parent has physical custody of one or more of the children, while the other parent retains physical custody of the others. Split custody is a very rare occurrence, however, as courts prefer not to separate siblings when issuing custody orders.

Court Considerations

When the court is needed to decide which parent will have custody, there are many factors that are considered, but two main concerns.

1. What is in the child’s best interest?

The main concern that always takes precedence over any other is what is in the children’s best interest.

Although the determining factors as to what exactly constitutes the children’s best interest varies from state to state, there are some common considerations, including:

  • the mental and physical health of the parents
  • religious and/or cultural considerations
  • the need for the continuation of a stable home environment
  • the continued opportunity to spend time with members of the extended families of both parents
  • interaction and interrelationship with other members of the household
  • the possibility of readjusting to a new school and/or neighborhood
  • either parent’s use of excessive discipline and/or emotional abuse
  • any evidence of either parent abusing drugs or alcohol

2. Which parent has been the child’s primary caretaker?

When the children’s best interest cannot be easily determined (a common occurrence), the courts then take into consideration which parent has been the children’s “primary caretaker”. Being a primary caretaker means that you have spent the majority of the time taking care of the children (for example, being a stay at home mom or dad would carry considerable weight for the decision).

In order to determine which parent has been the children’s primary caretaker, the courts tend to focus more on the day-to-day responsibilities of taking care of the children, such as:

  • helping with personal grooming, such as bathing, dressing, and dental hygiene
  • responsibility for the children’s eating habits and meal preparation
  • taking care of the children’s health, including doctor’s appointments
  • encouraging the children’s participation in extracurricular activities
  • developing the children’s reading, writing, and math skills, along with other education

Should it become apparent while looking at all the factors that both parents are equally sharing parenting responsibilities, the courts will once again try to determine the children’s best interest.

What about the child’s preferences?

If the children are of sufficient age to make their own decisions, the courts will take their preference into account in making a custody decision.

The court will listen closely to the children’s stated preferences as well as their reasons. The children do not have the final say in which parent will be granted physical custody, however, and it will be the court’s decision just how much consideration will be given to the children’s wishes.

The amount of consideration given will depend on age, maturity, and the quality of the children’s reasons.