Deciding Who Gets Custody

Deciding Who Gets Custody

When a couple is going through a divorce, child custody issues are often, understandably, the most emotionally charged issues they face. There are essentially two types of child custody at issue:

  1. Legal custody
  2. Physical custody

What is legal custody?

Legal custody means that you have all of the rights and obligations that a parent usually has, such as the right to have a say in all major decisions regarding your child’s life––religious, educational, medical, and extracurricular. Legal custody is almost always granted jointly, meaning that each parent will have a right to have a say in those major decisions regarding their child’s life.

What is physical custody?

Physical custody refers to where and with whom the child will live on a day-to-day basis. This can range from living with one parent on a day-to-day basis and seeing the other parent on a regularly scheduled basis, to shared or joint physical custody where the child is with each parent roughly 50% of the time.

Can parents decide who gets custody?

Couples have the right to make custody arrangements on their own and then have those arrangements approved by the court. An agreement made by both parents is preferable to a court-mandated solution. So, most family law courts now require that families first go through mediation to try and settle their issues outside of court.

However, if the couple cannot come to an agreement on custody arrangements, a judge will have to decide who gets custody of their child. But, once they get to court, the parents will lose all control over what their custody arrangements will look like.

How do judges decide who gets custody?

Custody laws vary from state to state, but one common rule applies in every state––judges decide who gets custody based on what is in the best interest of the child.

This may seem like common sense and that the parents should be able to do this without the court’s involvement, but again, it is often very difficult for divorcing couples to separate emotions from facts, legal requirements, and good common sense.

When looking at what is in the best interests of the child with regards to child custody, the court will evaluate a variety factors, including but not limited to:

  1. The love and emotional bonds between the child and the parents

The judge will look at the love, affection, and emotional ties the child has with each parent. This is often equal, so the court will evaluate other factors as well.

  1. The stability of the child’s home life – If one parent can provide a more stable home environment for the child than the other parent, this can be a huge factor in the judge’s decision.
  2. The child’s preferences – If the child is deemed old enough to express a preference, the court might consider it. Every case is different and there is usually no set age that determines when a child can testify or express his or her preference.
  3. The existence of any substance abuse or domestic violence – If there has been any substance abuse on the part of either parent or domestic violence within the relationship, the court will take this into account.

No two custody cases are alike, so the court will consider evidence from both parties as to what is in the child’s best interests. This might include reports from teachers or school records, doctors and medical reports, the testimony of babysitters or other caregivers, family members, and even photographs.

With the above best interests factors in mind, a qualified family law attorney can help you understand what evidence is relevant to your case and can help you present your case to the court more effectively.

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