How Does the Court Determine Who Gets the Children?

After separating from your child’s other parent, deciding child custody and visitation can be difficult for parents. How do judges and courts determine custody and visitation rights? Each state has different laws, and their courts have different practices. You should talk to a child custody lawyer in your state for legal advice about your situation.

Here is a look at some of the factors courts consider when deciding which parent gets custody of the children.

What Are the Different Types of Child Custody?

Courts will use different terms for child custody arrangements. Types of custody include legal custody or physical custody.

Physical custody refers to the time spent with each parent and is often termed timesharing, parenting time, or visitation.

Legal custody refers to the ability to make significant decisions in a child’s life, such as schooling, healthcare, and religious upbringing. Most courts prefer joint legal custody orders, giving each parent an equal say in their child’s health, safety, and well-being.

Both types of custody can be joint custody or sole custody situations. It is common for parents to share joint legal custody, wherein one parent has primary physical custody, and the children have less than equal time with the other parent. An example would be the children living with Parent A and seeing Parent B every other weekend and maybe an evening each week. Sometimes, parents share joint physical custody and have equal time with the children, as in a week-on/week-off situation.

It is unusual for one parent to have both sole custody with legal and physical custody unless there is a compelling reason for one parent not to have any time with the children.

How Is Custody and Visitation Determined?

Child custody can be based on a parenting plan and legal custody to which both parents agree. If the parties can’t agree on legal custody and a parenting plan, the court will decide with a court order.

If the parents can agree to the legal custody and visitation schedule, they can avoid going to court and having a judge decide the child custody case. Parents can develop creative options that fit their family’s needs instead of risking an uncertain outcome in court. Going to mediation can be one avenue parents have to come up with a custody order on which they agree.

What Is The Best Interests of the Child Standard?

The court will always decide child custody orders based on the “best interests of the child.” Courts consider the living situation of both parents and make decisions that will foster the child’s overall happiness, physical security, emotional well-being, and overall development.

What Determines the Child’s Best Interests?

The factors the court considers as part of the child’s best interests differ in each state. To understand the applicable child custody law in your area, it is best to consult with a family law attorney experienced in custody and visitation rights.

The family court judge makes a child custody decision based on several factors. Some factors that a judge considers in making custody decisions include:

• The child’s preference
• The child’s age and gender
• Any special emotional or medical needs
• The relationship between the child, parents, and any other children
• The parent’s mental and physical health
• The parent’s lifestyle, stability, and ability to provide basic necessities for the child
• Any domestic violence in the home
• The child’s current living situation and routine, which might include childcare providers, school and extracurricular activities
• The emotional, social, and emotional impact on the child if a custody change occurred
• Any other relevant factors

The Child’s Wishes

A child’s preference is one of many factors that the judge considers. How much a judge considers the child’s wishes also depends on the child’s age. For example, a 15-year-old’s wishes may carry greater weight than a 6-year-old’s.

However, it is essential to understand that in most states, until a child reaches 18 years old, they do not get to decide where they live, who has custody, or how often they see the other parent. They do have a voice, but not a choice.

Does a Parent’s Gender Determine Custody?

Historically, judges took a parent’s gender into account when deciding custody. There used to be a preference for awarding custody of young children to their mothers. Today, a judge will assess the fitness of both parents to be the child’s custodian without regard to the parent’s gender.

Expert Evaluations

A judge may call on a guardian ad litem, social worker, custody evaluator, or mental health professional to make a custody recommendation to the court. The judge will often rely on experts with specialized knowledge in the field. The experts may have worked more closely with the family members and other caregivers, observed their interactions, and gathered relevant information.

What Is Reasonable Visitation?

Reasonable visitation is often granted to parents in child custody agreements. Reasonable visitation doesn’t mean the custodial parent decides when the non-custodial parent can visit their child. A judge will consider the child’s schedule, the parent’s schedule, and other relevant factors. Such factors may include if there is a history of domestic violence or substance abuse. The custodial parent has to allow for reasonable contact, including visitation and telephone contact.

Custody and Visitation If You Were Not Married

If you were never married to the other parent, the court will still decide custody based on the best interests of the child. However, you will not have to consider the other issues that are usually decided as part of a divorce, including property division and spousal support.

Paternity may be a part of the proceeding to establish the original legal custody and parenting time order. Depending on local laws, you can establish paternity in a few different ways. If you are the child’s father and were not married to the child’s mother, talk to a family lawyer about how you can establish paternity.

What Is in a Parenting Time Order?

You should tailor the parenting time order to achieve what is best for your children and family. Any unique considerations that you want to address can be covered in the agreement. The court can make basic decisions, but courts tend to shy away from getting too creative without the parents’ input.

There are some basic issues your parenting agreement should address, such as:

• Custody labels, such as who has physical custody and legal custody and whether it is sole custody or joint custody
• The visitation schedule
• Any changes to the visitation schedule to accommodate holidays, summer, vacations, and school breaks
• Who will transport the child to and from parenting time
• How parents plan to handle any future disputes
• What steps parents will take to resolve any future changes

Getting Court Approval

Once you reach a parenting agreement, the court will review the agreement to make sure it is in the child’s best interests.

The court may schedule a court hearing to confirm that both parents understand the agreement and agree to be bound by the agreement.

Child custody decisions are important, and you should consider your child’s needs for the present and the future. If you have any questions about how the court determines who gets the children, speak with a local child custody lawyer for more information.