When divorcing parents agree to share custody of their children, a judge will typically approve as long as it serves the best interest of the children. However, if the parents cannot agree on how they will share custody of their children, a judge must decide and will usually grant primary physical custody to one parent or the other.
There is a myth that judges don’t grant primary physical custody to fathers. This is based on the fact that traditionally, mothers were the primary caretakers of the children and fathers were the breadwinners.
So, it made sense in the past to award custody to the mother, since she was the one who primarily looked after children anyway. Today, however, both mothers and fathers participate in caregiving and earning income for the family. As a result, courts are more inclined to order custody on a 50/50 basis.
If either parent wants primary physical custody of their children, they need to prove that it would be in the best interests of the children. A strong argument to this effect would include pointing out that he or she has traditionally been the children’s primary caretaker and that he or she continues to be the one who provides the care that the children need and deserve.
So who is a child’s primary caretaker?
To determine who should be considered a child’s primary caretaker, there are a number of questions one can ask:
- Who gets the child up in the morning?
- Who takes the child to school?
- Who picks them up from school?
- Who makes sure that they do their homework?
- Who makes sure that they are clothed and fed?
- Who makes sure the child bathes?
- Who gets them ready for bed?
- Who takes the child to the pediatrician?
- Who does the child cry out for when they are scared or in pain?
The person who performs the lion’s share of these duties has historically been considered the child’s primary caretaker.
When parents can’t agree on shared parenting, a judge will usually grant primary physical custody to the parent who has spent the most time caring for the child on a day-to-day basis, i.e., the child’s primary caretaker. The other parent will be awarded secondary physical custody.
A typical parenting plan would involve alternating weekends and holidays between the parent with primary physical custody and the parent with secondary physical custody. However, during the school week, the parent with secondary physical custody may only get one night with the child.
Arrangement that serves the best interest of the children
To summarize, if divorcing parents can come to an agreement on a custody arrangement that serves the best interest of their children, the court will usually approve. But, when they are unable to agree, the judge will determine the custody arrangement for them. Judges typically award primary physical custody to the children’s primary caretaker, who can be described as the parent who takes care of the children’s needs on a day-to-day basis and who has spent the most time with the children throughout their lives.
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