How Is Child Custody Decided In Divorce?

By Beverly Bird

Every state defers to a concept called the “best interests of the child” when deciding custody issues. But different states interpret this guideline in different ways. As a parent, you might do your best for your child every day, only to find that a judge disagrees with your assessment. In the end, it comes down to the opinion of that judge and what he and his state believe to be the most important factors in a child’s life. But some standard tenets apply.

The Child’s Preference

According to the Child Welfare Information Gateway, 11 states have specific language in their statutes directing judges to consider how the child feels in a custody dispute. Most other states allow a judge to at least weigh the child’s wishes. The preferences of a teenager can have a strong impact on a custody decision, such as if a boy does not want to lose daily contact with his father because his parents are divorcing. Generally, the younger the child, the less importance a judge might assign to his wishes. No matter what his age, the child cannot unilaterally make the decision regarding custody; a judge would include this factor among others.

Primary Caregiver

Especially with younger children, some states are reluctant to break the bond between a child and the parent who has consistently provided most of his care. Although most states have abolished the “tender years doctrine” which dictates that a young child is always better off with his mother, in many cases a wife has an edge in this area anyway. If she has historically been the one to oversee homework, bathe the child and tuck him into bed each night and take him to doctor appointments, courts will factor this into a custody decision.

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Community Factors

If one parent is keeping the marital home in the divorce, this might affect a judge’s custody decision. Courts are generally reluctant to uproot a child's life without very good cause. If your child has grown up in the marital home and has ties to friends in the neighborhood, as well as school and extracurricular activities located there, a judge will give this weight. The impact is much less if the parent who moves out remains nearby, in the same neighborhood.

Interference With Visitation

Almost universally, courts frown on a parent who attempts to sabotage or interfere with her child’s relationship with his other parent. States generally believe that a child needs regular contact with both parents, and most of their statutes contain language indicating that a parent who tries to facilitate her child’s relationship with the other is favored in custody disputes. If there’s a history of interference with visitation, a judge will consider this.

Parental Lifestyle

Many parents believe that their personal habits and lifestyle choices have a far greater effect on custody decisions than they really do. Generally, only truly egregious behavior is cause for denying custody, such as an established pattern of alcoholism, drug use or negligence that would put the child at risk. However, a judge might consider lifestyle factors if one parent typically works excessive hours and is rarely at home. This would mean his child is likely to spend excessive time with an alternate caregiver rather than with his other parent. A conviction for child abuse would also rule out a parent for custody, even if the abuse didn’t involve the child who is the subject of the current custody dispute.

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What Age Can a Child Decide Custody?


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Shared vs. Residential Custody

In most states, two kinds of custody apply to all separating families: legal and physical. Legal custody refers only to major decision-making, and physical custody refers to the parent with whom a child lives. A parent with sole physical custody is sometimes referred to as the residential or custodial parent; this is the parent with residential custody. When a child lives a relatively equal amount of time in each parent’s home, this is referred to as shared custody, also often called joint custody.

Child's Preference in a Divorce

During a divorce, children often want to express their wishes about custody, especially if they have a stronger preference to live with one parent instead of the other. Depending on the child’s age, his maturity and your state's laws, your divorce court may consider your child’s preferences. However, laws vary among states, so there is no one-size-fits-all answer.

Divorce Laws and a Father's Rights in the State of Kansas

Like many states, Kansas has done away with the “tender years doctrine” that once assumed mothers should always have custody, especially of babies and younger children. The state’s legislative code now specifically states that courts will not consider a parent’s gender when determining custody in a divorce. Technically, both mothers and fathers enter into custody disputes on equal footing.

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