How to Get Divorced & Keep Custody

by Anna Green
The court may favor a parent who already has custody of her child.

The court may favor a parent who already has custody of her child.

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During a divorce, a court will often favor a parent who is already acting as a child’s primary caregiver. Although custody laws and procedures vary between states, many jurisdictions base child custody determinations on what is in the child’s best interest. The child’s relationship with each parent is one of many factors the court considers when evaluating the best interest of the child during a divorce.

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Step 1

Establish you are the child’s existing custodian. If you and your spouse are separated at the time of your divorce or you are already the primary caregiver for the child, the court will consider this when making a custody determination. In the interest of providing consistency and helping the child maintain her established relationships, the court will often—although not always—grant custody to the parent with whom the child already resides.

Step 2

Request custody in the divorce petition. In the divorce petition or response, a parent will generally need to ask for custody of the child. Further, the petition should state whether you are seeking sole custody or whether you want to maintain your existing custody arrangement, but allow your spouse parenting time or visits.

Step 3

Demonstrate how maintaining custody is in your child’s best interest. Within the petition, a parent trying to retain custody should provide reasons why the child should remain in her care. For example, if you have been the primary caregiver over a long-term separation or if the child has other siblings in the home with whom she has a close relationship, consider explaining this in the petition. Likewise, if your schedule is more conducive to parenting than your spouse’s, you may want to include this in your divorce petition. Finally, if your spouse has personal issues that would affect his ability to parent—for example, if he has a history of substance abuse or domestic violence—it may be useful to document this in your request for custody.

Step 4

Provide evidence supporting your custody claims. For instance, if your spouse has displayed violent behaviors in the past, you may want to introduce as evidence copies of past police reports. You may also want to call witnesses to support your claims, such as close family members who have helped care for the child in the other parent’s absence or the child’s psychologist, who can attest to the claims that the child does not have a close relationship with her other parent. Further, affidavits from the child’s teachers, medical records and school pick-up and drop-off records can help establish you have been the child’s sole or primary custodian.

Step 5

Ask the judge to make a custody ruling during the trial. If the child’s other parent does not agree with you maintaining custody, the court may need to hear arguments from both sides and make a final custody ruling. During trial, both you and your spouse will have the opportunity to present evidence and witnesses to support your respective cases.