Custody & Visitation Law

How Does the Court Determine Who Gets the Children?

Following a divorce or a break-up, issues regarding child custody and visitation can get contentious for parents. So how do judges and courts determine custody and visitation rights? Each state has different laws and their courts have different practices, so we recommend asking a custody lawyer in your state about your particular case.

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

Types of Child Custody

In many states, courts will use different terms for child custody orders, such as 50/50 custody, full custody, joint physical custody, or shared parenting situations, then determine the percentage of time that the child will spend with each parent.

Physical custody refers to the allocation of time spent physically with each parent. Legal custody refers to the ability to make day-to-day decisions in a child's life. The preference in most cases is joint legal custody or shared parenting so that each parent has an equal say in their child's health, safety, and general welfare.

Child custody and visitation rights vary according to the state you live in and file. For example, child custody in California is ordered as legal custody and physical custody. Legal custody can be joint or sole and physical custody can be joint or sole or primary. In Texas, child custody is referred to as conservatorship, which can be either joint managing or sole managing.

How Is Custody and Visitation Determined?

Determining custody usually involves making some type of parenting plan that both parents agree to and send to the court. If the parties can't agree on a parenting plan, then the court will listen to arguments from both parents and then make a decision.

Ultimately, what is most important for the court to decide is the basic schedule with each parent that the child will follow. This schedule is decided as part of the custody and visitation decision as a whole, and incorporated into the divorce decree or as an addendum to it.

If the parents are able to agree to the custody and visitation schedule and terms, then they may avoid any court decisions other than approval or disapproval as part of finalizing their divorce decree. It is common for parents to come up with creative options that fit their family instead of risking an uncertain outcome in court.

The "Best Interests of the Child" Standard

In making any decision regarding how much time a child will spend with either parent, the court will always make that determination based upon the "best interests of the child" standard. Courts consider the living situation of both parents and make custody and visitation decisions with the goal of fostering the child's overall happiness, physical security, emotional well-being, and overall development.

As with custody decisions, the court applies a variation of the best interests standard when making visitation and parenting time decisions. Custody and visitation decisions are often made together for a full application of the state's best interest factors.

The factors that are considered as part of the child's best interests are different 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.

What Determine the Child's "Best Interests"?

What will courts look at to determine what is in a child's best interests? That could depend on where you live. While judges in all states apply the best interests of the child standard, the factors that actually make up the standard may vary from state to state.

There is typically no one factor that guides a judge's custody decision; rather, the judge makes a child custody decision based on a combination of several different factors that contribute to the "best interests of the child." Common factors that a judge considers in making custody and visitation decisions include:

  • The child's preference, if state law allows and the child is above a certain age, usually about 12 to 14 years of age
  • The child's age and gender
  • Any special emotional or medical needs of the child
  • The relationship between the child, parents, and any other children in the household
  • The parent's mental and physical health, including evidence of drug or alcohol use or abuse
  • The parent's lifestyle, stability, and ability to financially provide basic necessities for the child
  • Any pattern of domestic violence in the home, or evidence of excessive discipline, emotional abuse, or child/sex abuse
  • 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

Typically, the judge will apply the relevant factors to cases on an individual basis, as every family is unique. For example, if a father's primary reason for wanting custody is that the mother has moved 10 times in the last two years and the child has been repeatedly moved from school to school. The father claims the moving has affected the child's academic performance. The judge may evaluate factors such as the mother's lifestyle and stability and the impact of a change on the child and the child's educational situation.

Applying Child Custody Factors

Although many people think that once a child reaches a certain age, they can decide where to live, that's not entirely the case. A child's custody preference is simply one factor to consider, and while some states may place more emphasis on that factor than others, a judge is highly unlikely to allow the child to make all of the decisions regarding custody and visitation rights.

The Child's Preferences

Rather, a child's preferences are simply one of many factors that the judge must take into account in making a custody determination. Furthermore, the weight that the judge gives to the child's preferences may depend in large part on the child's age. While a 6-year-old may not be able to articulate a logical reason for their preference, a 15-year-old's wishes may carry greater weight in a judge's custody decision, depending on the circumstances and the reasons for the child's preference.

Does a Parent's Gender Determine Custody?

While a parent's gender historically was taken into account in some states, there once was a preference for awarding custody of young children to their mothers, no such preference exists 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

Finally, because not all judges are experts in family relations, a judge may call on a guardian ad litem, social worker, custody evaluator, or mental health care professional to investigate and evaluate the family in order to make a custody recommendation to the court. The judge will often rely on these experts who not only have specialized knowledge in the field, but who have also worked more closely with the family members, observed their interactions, and gathered relevant information.

What Is Reasonable Visitation?

Reasonable visitation or reasonable parenting time is often granted to parents in child custody agreements. However, this usually does not mean there are specifics and the parents can determine the terms on their own, according to what they consider "reasonable". Unfortunately, this could mean the custodial parent dictating terms that the non-custodial parent often has no control over.

On the other hand, a fixed visitation schedule would include specific times and dates for visitation so there's no room for any confusion or disagreement. This schedule is usually ordered by a judge.

Custody and Visitation If You Are Unmarried

If you were never married to the other parent, the proceeding will go somewhat differently. The same factors are at issue, specifically 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.

Depending on the law in your area, if you have not already established it, paternity may be a part of the proceeding to establish the original custody and parenting time order. Paternity can be established in a few different ways and your local laws govern what the courts will require.

What is Commonly Included in a Parenting Time Order?

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

While the details covered in your parenting agreement will be specific to your situation, there are a few issues your parenting agreement should address, such as:

  • Custody labels, if applicable, such as who has physical custody and whether it is sole custody or joint
  • Custody labels, if applicable, for legal custody such as whether it is sole or joint or other guidelines on legal decision making
  • The weekly or monthly visitation schedule that will be followed on a regular basis
  • Any deviations for holidays, summer, vacations, 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 to the current agreement

Getting Court Approval

Once the agreement has been reached, the written version of the parents' agreement must be approved by the court in order to ensure that it is in the best interests of the child.

Especially if either party is unrepresented by counsel, the court may schedule a court hearing, during which the judge might ask for confirmation that both parents understand the agreement, that it is in the best interests of their child, and that they agree to be bound by the agreement.