How Does The Court Decide Who Gets The Children?

At the outset, it is important to understand that “custody” is usually divided into two separate categories – legal custody and physical custody.  Usually, both parents are granted joint legal custody; meaning that both parents have an equal say in making the day to day decisions related to their children’s health, safety and general welfare.  Physical custody simply refers to the allocation of time spent with each parent.  Over the years, many states have done away with the term “sole custody” and simply order that the parents have joint physical custody then determine the percentage of time that the child will spend with each parent.  This is usually done through the use of some type of parenting plan that is either agreed upon by the parents and submitted to the court or if the parties can not agree on this, then the court will listen to arguments from both parents and then make a decision.

In making any decision regarding how much time a child will spend with either parent, or which parent will have primary custody, the court will always make that determination based upon the “best interests” of the child standard.  In using the “best interests” standard, a court will look carefully at both parents in order to determine if there are any factors that make it better for the child to spend more time with one parent than the other.  For example, if the mother has an 80 hour per week job and the father works part-time, that would be an important factor.  In addition, any issues that either parent has related to a substance abuse problem, present or past criminal activity or any other type of unstable lifestyle will be carefully evaluated.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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