What courts consider when deciding who gets the kids.

What's Below

• What factors do courts take into account when deciding who gets custody of the children?
• When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?
• If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?
• Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
• Is race ever an issue in custody or visitation decisions?
• Are mothers more likely to be awarded custody over fathers?

What factors do courts take into account when deciding who gets custody of the children?

A court gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends upon many factors, including:

• the child's age, gender, mental and physical health
• the mental and physical health of the parents
• the lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
• the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
• the parent's ability to provide the child with food, shelter, clothing and medical care
• the child's established living pattern (school, home, community, religious institution)
• the quality of the schools attended by the children
• the child's preference, if the child is above a certain age (usually about 12), and
• the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.

When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?

The parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a maximum amount of time with each parent. Unfortunately, it all too often translates into very little visitation time with the noncustodial parent, and lots of bitter disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement) which sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?

In a word, yes. Even if a parent leaves to avoid a dangerous or highly unpleasant situation, it's unwise to leave the children behind if he or she wants physical custody down the line. The parent who leaves doesn't break any laws by leaving the kids with the other parent -- unless that parent harms the children, and the parent who left had reason to know or should have known that would happen. But the parent who leaves does send a message to the court that the other parent is just as suitable for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children's regular routines.

If a parent must leave the familial home (and wants to be the primary physical custodian), he or she should take the children and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without his or her knowledge. Family law judges frown upon a parent who removes the children from the home without seeking the court's recognition; a judge may order that the children be returned to the family home pending future proceedings to determine physical custody.

Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child. As a practical matter, however, lesbian and gay parents -- even in those states -- may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.

Is race ever an issue in custody or visitation decisions?

The U.S. Supreme Court has ruled it unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In that case, a white couple had divorced, and the mother had been awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially a racial one, cannot be the basis for a custody decision. (Palmore v. Sidoti, 466 U.S. 429 (1984).)

Are mothers more likely to be awarded custody over fathers?

In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. No state requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the sex of the parent.

As it turns out, most divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that the mother has more time, a greater inclination or a better understanding of the children's daily needs.