How Is Child Custody Decided?

When parents separate, custody decisions shape a child's daily life. Every state uses the same guiding principle, though the specific factors differ.

Legal vs. physical custody

• Legal custody: the right to make major decisions about the child's education, health care and religion (Cornell LII).
• Physical custody: where the child lives day to day.

Each can be joint (shared) or sole. Joint legal custody is common even when the child lives mostly with one parent.

The best interests standard

Courts decide based on the best interests of the child (Cornell LII). Common factors in state statutes include:

• The child's relationship with each parent and siblings
• Each parent's ability to provide care, stability and a safe home
• Who has been the primary caregiver
• The child's adjustment to home, school and community
• Each parent's physical and mental health
• Any history of domestic violence, abuse or substance abuse
• Each parent's willingness to encourage the child's relationship with the other parent
• The child's own wishes, depending on age and maturity

Many states have a presumption against custody for a parent who has committed domestic violence.

Does the mother automatically get custody?

No. Modern custody laws are gender-neutral. For unmarried parents, though, the father may first need to establish legal paternity; see how to establish paternity.

How decisions are actually made

1. Agreement: most parents agree on a parenting plan, often with help from lawyers or a mediator. Courts usually approve agreements that serve the child.
2. Mediation: many courts require custody mediation before a hearing.
3. Evaluation: in disputed cases, a custody evaluator or guardian ad litem may interview parents, children and others.
4. Hearing or trial: a judge decides based on evidence.

The parenting plan

A good plan covers the regular schedule, holidays and vacations, decision-making, communication, transportation, and how to handle changes. Our parenting plan checklist lists the topics.

At what age can a child choose?

There is no single age nationally. Judges give more weight to older, mature children's preferences, but the decision remains the judge's.

After the order

Custody orders can be changed if circumstances change significantly; see how to modify a custody order. Moving away with a child has special rules; see moving out of state with a child.

A family lawyer can explain how courts in your county apply these factors.

Sources

1. Cornell Law School LII: Best interests of the child
2. Cornell Law School LII: Legal custody
3. Cornell Law School LII: Child custody