Child custody is determined by the best interests of the child. When parents cannot agree, a judge weighs factors such as the child’s safety and needs, each parent’s relationship with the child, each home’s stability and, depending on age and maturity, the child’s own wishes. Most custody arrangements, however, are agreed by the parents and approved by the court rather than decided after a trial.
Key takeaways
- Custody has two parts: legal custody (decisions) and physical custody (where the child lives).
- Courts no longer favor mothers or fathers by default; they look at the child’s needs.
- Custody orders can be changed later if circumstances substantially change.
Types of child custody
| Type | What it means |
|---|---|
| Legal custody | The right to make major decisions about education, health care and religion |
| Physical custody | Where the child lives day to day |
| Joint custody | Both parents share legal and/or physical custody |
| Sole custody | One parent holds legal and/or physical custody; the other may have visitation |
Joint legal custody is common even when the child lives mainly with one parent. Many states now encourage arrangements that give the child frequent contact with both parents, unless that would be harmful.
Factors judges consider
Each state lists its own factors, but most include:
- The child’s physical and emotional safety, including any history of domestic violence, abuse or substance abuse.
- Each parent’s past role in caregiving: school, medical appointments, daily routines.
- Each parent’s ability to provide a stable home and meet the child’s needs.
- The child’s adjustment to home, school and community, and the effect of moving.
- Each parent’s willingness to support the child’s relationship with the other parent.
- The child’s preferences, given more weight as the child gets older and more mature.
- The physical and mental health of the parents and the child.
How the custody process works
- Filing: custody is requested in a divorce, separation or a separate custody case. Under a law adopted by nearly every state, the case is usually heard in the child’s “home state,” where the child has lived for the past six months.
- Temporary orders: the court may set temporary custody and support while the case is pending.
- Parenting plan: parents propose a schedule covering school weeks, weekends, holidays, decision-making and how disagreements are resolved.
- Mediation: many courts require parents to try mediation before a hearing.
- Evaluation: in contested cases, the court may appoint a custody evaluator or a guardian ad litem to investigate and make recommendations.
- Hearing or trial: if parents still disagree, the judge hears evidence and issues an order.
Common custody myths
- “Mothers always get custody.” Courts abandoned automatic maternal preference decades ago; the child’s needs and each parent’s involvement matter.
- “A child can choose at age 12.” Few states set a fixed age. A child’s preference is one factor among many.
- “Moving out means losing custody.” Not automatically, but leaving the child’s daily life can affect the court’s view of the status quo, so get advice before moving.
Can custody be changed later?
Yes. A parent can ask the court to modify custody when there is a substantial change in circumstances, such as a relocation, a change in the child’s needs or concerns about safety. Many states require a waiting period after the original order unless the child is in danger.
Frequently asked questions
Does child custody affect child support?
Yes. Support is calculated with state guidelines that usually consider each parent’s income and how much time the child spends with each parent.
Do grandparents have custody rights?
Grandparents can seek custody or visitation in limited circumstances, which vary greatly by state.
Can parents agree on custody without going to court?
Parents can agree on a parenting plan, but it should be approved by the court to be enforceable.
Custody law varies by state, and the details of each family matter. A family law attorney or your court’s self-help center can explain local rules. If you are planning ahead financially, read what a postnuptial agreement can and cannot do.