Types of Custody

Child custody can refer to either physical or legal custody.  Physical custody is the actual possession of the child. While legal custody refers to the right to make decisions affecting the life of the child (e.g., decisions regarding medical care, education, and religion).  Parents can have physical custody, legally custody, or both.  Joint custody can be either joint legal custody, joint physical custody, or both.

Determining Child Custody

In most child custody cases, the court considers what is in the best interest of the child. This goes for both sole custody and joint custody cases.  If sole custody is to be awarded, evidence must be shown that you are able to provide the best care for your child.

Below are some factors the court considers when determining sole custody:

  • The bonding and emotional ties that exist between each parent and the child
  • The length of time the child has lived in the current home and whether that environment is stable and satisfactory
  • The mental and physical health of each parent
  • Evidence of family violence, child abuse, substance abuse or criminal history of either parent
  • The ability of each parent to meet the educational needs of the child
  • The ability of each parent to provide the child with food, clothing, and medical care
  • Each parent's involvement in the child's educational, social and extracurricular activities
  • Witnesses can also be used to show that your child is better off in your custody.  Witnesses can be family members, neighbors, teachers, friends, and caseworkers.

Below are factors considered when determining if joint custody is appropriate:

  • Fitness of both parents
  • Do both parents agree to joint custody?
  • The child's preference
  • Ability of the parents to communicate with each other in regards to the child's well-being
  • Proximity of both homes
  • Level of involvement in the child's life
  • Effect of a joint custody arrangement on the child's psychological development
  • Parents' ability to carry out the joint custody order.

The court usually grants joint custody when both parents agree to it. However exceptions will be made if the court believes joint custody is not in the best interest of the child.

Parenting Plan

During custody disputes, parents are required to submit a detailed parenting plan to the court.  The parenting plan should include matters such as:

  1. Where will the child spend each day of the year?  This should include birthdays, holidays, and school breaks.
  2. Transportation - How will the exchange between parents take place?
  3. Allocation of decision-making authority with respect to the child and how disagreements will be resolved.

Modification of  Child Custody

Child custody orders can always be modified.  Below are some of the reasons a custody order can be modified.

  1. Changed Circumstances

    1. Most modifications of child custody are caused by a change in circumstances that has occurred since the final order was decided.  This change in circumstances must be shown to substantially affect the welfare of the child.  This change can be either positive or negative.
  2. Removal of Child from Jurisdiction

    1. Removing the child from the jurisdiction can be considered a violation of the custody order.  If one parent has decided to move to another state, the custody order may need to be modified .
  3. Non-marital Cohabitation

    1. In most states, cohabitation is not considered an acceptable reason to modify a custody order.


Child's Preference

Often, the preference of children under the age of eight will not be given much consideration.  In contrast, the preference of children over the age of 12 will weigh heavily in the courts decision.  The judge will question the child in order the determine the child's preference.

Children Between the Ages of Eleven and Fourteen

For children between the ages of eleven and fourteen the court will base their decision on what is best for the child.  The child's preference is considered, but ultimately the court will decide what is in the best interest of the child.

Children Age Fourteen or Older

For children ages fourteen and older, they have the right to choose which parent they want to live with.  The child's choice will be honored unless the court determines their choice is not in the best interest of the child.  The child's selection is considered a change of circumstances and can only be made once every two years.

Effect of Primary Caregiver Status

In most cases, if the court is responsible for choosing which parent receives custody, they will choose the parent who is the primary caregiver.  The primary caregiver is considered the parent who is most involved in the child's day-to-day life.


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