How to Negotiate Child Custody and Divorce

By Rob Jennings J.D.

Child custody is one of the biggest issues to negotiate when going through a divorce. There are many ways to handle placement of children and this is often one of the more emotional parts of a divorce proceeding. However, when divorcing couples can come to an agreement that works for the family, the children benefit in the end.

Child Custody Laws

Child custody consists of legal and physical components. Legal custody is the power to make decisions for your child, such as education, religion and health care. Physical custody represents a child's primary residence and his day-to-day care. Child custody laws vary by state, so check your state's statutes. This will help you determine what the court might order if your case proceeds to trial. Typically, a court’s primary consideration is the child’s best interests. Therefore, you should provide evidence as to how your desired arrangement benefits the child.

Sole Custody

Sole legal custody is when one parent has the right and responsibility to make decisions regarding the child’s welfare. Sole physical custody is when the child resides with and is under the supervision of one parent. However, the noncustodial parent usually has visitation rights, unless the court determines visitation would not be in the best interest of the child. Courts often do not like to award sole physical and legal custody to a parent unless the other parent is unfit. Typically, courts prefer shared legal custody and rather one parent not have absolute decision-making authority over a child.

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Joint Custody

Joint or shared custody allows both parents to share either legal custody of the child, physical custody of the child, or both. Often when joint custody is awarded, both parents share physical custody of the child; however, one parent will usually serve as the child's primary residential parent. Joint custody in which both legal and physical custody are shared between parents is optimal when both parents get along. It allows both parents to have input on major decisions and disperses the responsibility of raising the children, allowing the children greater access to both parents.


Usually the best interests of the child is the standard for determining custody arrangements. A parent may argue for sole custody or designation as the primary residential parent by using the child's school records to show how the child has been making good grades while living with her. A parent could also use medical records, such as visits with a psychiatrist, to show how living with her is beneficial to the child. A parent may also provide evidence that she has been the primary caregiver of the child, as demonstrated by her regularly taking the child to school, helping with school work or cooking for the child. This will help show how the parent is capable of taking care of the child and maintains the status quo. Before negotiating your child custody case, you may want to set goals. This will help during negotiations since you will have a better picture of both your best case scenario and bottom line, which will help in reaching a compromise and settling the case.

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