As of 2018, there were more than 13.6 million single parents. Of these single parents, 87.9% of the child custody agreements were decided via the court system.

If you’re in a situation where a divorce has taken place, the next step is determining child custody. How is child custody determined, you might be wondering?

Divorce with kids can be challenging, but knowing the child custody factors that you face will help prepare you to come to an agreement that works for both parents and is in your child’s best interest.

Types of Child Custody

Types of Child Custody

Every situation is not the same. For this reason, there are several variations of child custody types that people find themselves in.

Deciding where your children will spend most of their time and which parent will get to make decisions for the child can cause a massive child custody battle. It’s best before meeting with your former partner that you sit down with your legal representation.

Your legal representation will discuss the custody options that will work the best for your specific situation. Here are the most common types of custody and the meaning of each.

Physical Custody

Physical custody is when the child or children in question primarily live with one parent. The parent that doesn’t have physical custody of the child will be given visitation rights based on a schedule that’s both parties have agreed upon.

In some cases, both parents are given physical custody of the child, meaning the child will spend an equal amount of time in each parent’s home. Sometimes in the case of physical custody, there is something called bird’s nest custody.

Instead of the child moving back and forth between homes, they remain in one place. The parents are the ones that will take turns visiting the child based on their set schedule instead of the child moving from place to place.

Legal Custody

Legal custody gives the parent the right to make all decisions for the child until they become of age to do so independently. The parent will make decisions according to the primary needs that the child or children have.

Areas that require decisions to be made include:

  • Education
  • Medical needs
  • Religious beliefs
  • Healthcare
  • Insurance

If both parents have legal custody of the child, they will need to consult each other before making decisions for the child. If one parent makes a decision without consulting the other parent, it could cause problems with the custody agreement.

Joint Custody

In this type of custody agreement, both parents share equal custody of the child or children. This means that all decisions made and time must be split equally amongst the parents.

During the custody process, the parents will sit down and split holidays evenly and things like school breaks. If things aren’t agreed upon evenly, they will either be determined by a judge, or the former couple will need to continue with legal mediation.

Sole Custody

Sole custody can be combined with physical or legal custody. In a situation like this, one parent has provided sufficient evidence to prove that the other parent is unfit to parent their children.

This evidence could be a history of abuse or drug and alcohol abuse. In this case, one parent will be given legal and physical custody of the children.

Although the other parent is unfit, this doesn’t completely take away their rights. Most courts will allow visitation with the non-custodial parent after they meet certain conditions.

These conditions may include:

  • Substance abuse counseling
  • Passing of drug and alcohol tests
  • Anger management classes
  • Domestic violence classes

As long the non-custodial parent upholds and meets these requirements, most courts will allow them to see their children. If this is the situation you find yourself in, it’s helpful to know what kind of visitation might be set up.

Supervised Visits

Supervised visits mean that the non-custodial parent may visit with their children in the presence of another responsible adult. Sometimes, the supervising adult is appointed by the courts like a social worker or one of the custodial parents choosing.

People that can act as the supervising adult include grandparents, other family members, or close friends.

Virtual Visits

This type of visitation goes into place if a child and the non-custodial parent live far apart. Virtual visitation has been in place, especially during the pandemic, when parents modify their schedules due to quarantine.

Although most parents would enjoy seeing their children in person, this type of visitation gives the parent and child a way to stay connected until their next in-person visit occurs.

Unsupervised Visits

This level of visitation is the most common unless there are reasons that it shouldn’t be happening. The non-custodial parent will set up a schedule with the custodial parent to take their child or children a couple of days a week by themselves.

Once the specified time for the visit is over, the non-custodial parent must return the child to the custodial parent.

How Is Child Custody Determined?

How Is Child Custody Determined

Before you can decide on the type of custody agreement, you need to go through the court process. The judge will take into account the evidence provided by both parent’s child custody lawyers.

However, in the case of children, one thing you should remember is that the court system will do what’s best for your child. Even if that means that you’re not awarded custody put your needs and wants last and your child’s first.

Here are some of the child custody factors that will shape the child custody agreement.

Parent-Child Relationship

The relationship you have with your child is important, especially when deciding on child custody. For example, if one parent has proven to exhibit signs of abuse and negligence, this would not show the court that the relationship between the child and their parent is positive.

If the relationship between a child and parent is positive instead of being negative, that parent will likely be awarded custody of the child.

Age of Child(ren)

When children are younger, decisions are made for them. If a child is in the infancy stage, they will likely need to spend more time with their mother, especially if they’re breastfed.

But, as children get older, they can provide their opinions about how they feel. The older a child is, the more their opinion will be considered when determining custody.

Older children speak freely about their relationships with their parents and can state whom they would rather spend more time with. While an older child’s opinions are taken into consideration, the judge will still have to consider other factors before making their final ruling.

Parents Fit or Unfit

A judge is not going to grant custody to a parent that is unfit to parent. If your former spouse has a history of drug abuse that’s recent, this would be evidence of being an unfit parent.

Or if your former spouse is moving from home to home because they aren’t able to support themselves, it would be clear to the judge that they cannot support a child. Children must be cared for mentally and physically.

If a parent isn’t able to do this, it could be a massive defining factor in the child custody case.

Which Parent Does the Most

A judge will consider which parent took care of the child primarily before the divorce process took place. For example, if the mother was a stay-at-home mom, the judge will note that the children spent most of their time with her compared to the father.

In this case, the mother would retain sole custody of the children as a means of providing them with a sense of normalcy as everything else around them continues to change.

Parental Work Schedule

To take care of children, parents must work to make money to support them. If one parent works 16-hour days, it may not be the best idea to provide them sole custody.

Parents seeking joint custody of their children will likely need to adjust their work schedules to ensure they’ve got ample time to spend with their kids.

Living Accommodations

Parents must be able to provide children with a clean and safe place to live. The court will consider the living arrangements that each parent intends to make for their children.

If the home doesn’t have enough space or isn’t sanitary, it’s not likely that the child will be allowed to live there until changes have been made. If you and your former partner share multiple children, the court may require that each child have their own room.

Parent Willingness

Divorce cases can get ugly, and child custody cases are no exception to this rule. Judges want to know that both parents are willing to put their personal wants and needs aside to determine what will work the best for the child.

If you allow your emotions and frustrations to take over during the custody process, it can impact your case negatively. It would help if you always showed that your child being taken care of is all that matters, no matter the outcome.

Parental Wishes

Your wishes when it comes to determining the custody agreement you will follow matters as well. Keep in mind that although you can make your wishes known, it doesn’t mean the judge will grant your wishes.

Before you enter the courtroom, you will need to have met with your legal council beforehand and discuss your custody wishes with them. They will ensure that your wishes are explained clearly in documentation format and submit them to the court.

These wishes will also be used and discussed during mediation sessions with your former partner.

False Allegations

Again, it’s not uncommon for a custody battle to become less about the child and more about both parents’ egos. There are times when one parent submits falsified information to the court to achieve the outcome they’re looking for.

Do not make false allegations against your former partner to win the case because it won’t work in your favor. Lying in court is a crime and will give the judge reason enough to award custody in favor of the parent that didn’t tell the lies.

Child’s Well-Being

Child's Well-Being

If there was an agreement in place, but it hadn’t been made official in the courtroom yet, the judge will consider how changing the agreement will affect the child’s well-being. If changing the custody agreement will cause issues as far as their daily routine is concerned, the judge may rule to keep it the same.

There are several instances when former partners agree outside of court. The only reason they take the matter to court is to have the agreement officially documented if the parents need to use that for legal purposes in the future.

Before you can head to court, you must have the right representation. If you’re still looking for a legal team to help you with your divorce and child custody case, the team at Freedom Law can help you.

Child Custody 101

How is child custody determined can depend on a variety of things. It depends on the relationship that each parent has with their child(ren) and making sure that each parent can provide a healthy environment for their children to live in.

With the help of this guide, you can now begin taking the next step in your child custody case. If you’d like more information on this topic or others, check out some of the other posts in this section.

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