How is Custody DeterminedHow is custody determined in a divorce case? If you are facing a possible custody battle, you need to realize that the judge will consider the best interest of the child above all the other issues. You can find out the specific factors considered by looking up the child custody laws for your state. You can also learn more about how to get child custody by reading the following questions and answer:
How does the judge decide who is the better parent? Elena's Question: My husband and I are both "Church people", and don't use drugs or alcohol. I'm a stay at home mom, and my kids love my husband very much. How would the judge determine who is the better parent for the children to live with? Brette's Answer: The court looks at who has been the primary parent, the amount of time the parents have spent with the children, their living situations, and all the circumstances to determine what would be best for the children. What can I do if we can't reach a custody agreement? Cristina's Question: Every time we have tried to come to an agreement about custody of our child, he always ends up insulting me and we don't get anywhere. What can I to do to get a custody agreement worked out? Brette's Answer: If you can't reach agreement, you can either go to a mediator who can help you reach an agreement (without insults) or hire an attorney. You could also file for custody on your own without an attorney, but if you can afford a mediator or an attorney I would highly recommend it. » Return to questions Can my ex keep our son for 6 months without getting full custody? Nisha's Question: My ex and I are trying to work out an agreement were he can keep my son for 6 months out of the year, but I don't want to give him full custody of our son. What can I do to ensure our son is back with me at the end of the 6th month? Brette's Answer: This would be a shared custody arrangement. If he doesn't return your son, you take him back to court for violating the order. Can he get custody if he takes care of the kids? Amy's Question: A little over two months ago, the children and I moved out. Sometimes I work days and sometimes nights and my husband takes care of the kids whenever I work. Some weeks this means that he has the kids more days than I do. I'm so afraid that because of this he will try to get custody. Can he be awarded custody if he sees the kids half the time (sometimes more)? Brette's Answer: Custody will be determined by the court in the best interest of the children. The problem is that the court would rather the children be with a parent than a day care provider most of the time. It sounds like you have developed a joint custody situation and are sharing time in a way that works out for both of you. Unless there is some evidence that shows he is a much better parent than you, I see no reason a court would want to change that. If the status quo is working, the court likes to stick with it. » Return to questions Will the fact that I don't have a job affect custody? Stacey's Question: The day I went to take the papers for a divorce, I lost my job due to production quota. That scared me because I thought without a job I would not get my child. But the mental abuse toward me and my daughter are getting worse everyday. so I am going on with the divorce. I recently paid all my bills off so I could stay home awhile with my daughter. Will the fact that I don't have a job hurt me in court? Brette's Answer: No. Custody is decided based on what is in the best interests of the child. If you provide a better home and environment and relationship with your child, you will get custody. How will if affect custody if I live with my parents? Jo Ana's Question: My husband and I moved in with my parents and now I am filing for divorce. If he moves out and gets his own place and I still live with my parents, will that effect my chances of custody? My daughter has her own room and I have mine. Brette's Answer: The only effect is that the court will need to have information about your parents to make sure it is a good environment. In fact, sometimes this kind of situation is better, since there is added support for the child. » Return to questions Will he get custody just because the house is in his name? Linda's Question: I am in the process of a divorce. We have a 3 1/2 year old son. He owns our townhouse and my name is not on the mortgage or deed. We both work and I earn more money than he. He feels the court will give him residency because the title to the house is in his name and it would be best for our son. He has cautioned me to rethink divorce since I could lose custody of my son. Is this true? Brette's Answer: Stop listening to your husband and talk to an attorney. If the home was purchased during the marriage it is marital property and belongs to both of you. Custody is not awarded based on whose name is on the deed of a house! Custody is determined by considering what is in the best interest of the child by looking at all of the circumstances. Often the person who gets custody is the person who gets the house (custody first, residency second), but that certainly isn't always the case. » Return to questions Will I be able to retain custody once the baby is born? Elaine's Question: When I found out I was pregnant, we married after knowing one another briefly. Two months later, I am filing for divorce. Will I be able to retain custody once the baby is born? Brette's Answer: Custody has nothing to do with how long you knew each other or how long you were married. It is decided based on what is in the child's best interest. That said, it is rare for custody to be taken from a mother after birth. You should start thinking about what a reasonable visitation plan would be that will allow your child time to get to know and develop a relationship with his father. Can I get full custody and make sure there's no over-night visitation? Steph's Question: I'm a breastfeeding mother of a 6 month old. If my son's father isn't abusive and doesn't do drugs, but isn't a good dad and doesn't put any effort into seeing or talking to his son, is there any way for me to have complete custody with out him getting granted visitation in the divorce? If he does get visitation can it be mandatory that I'm there and there are no over-nights? Brette's Answer: Often fathers of babies need some time to develop relationships with them. If there is nothing negative about your ex, there's no reason he can't have visitation. What you have to realize is that your child isn't going to be a baby forever. He'll be 5 and want a dad to throw a baseball with or 10 and want a dad to go to his soccer game, etc. Your son deserves to have a father in his life. It's really common for moms of infants to feel very protective - you know that you know how to care for him and doubt that the dad does. You need to decide to make visitation happen for your son's benefit. It should start slowly - no one is going to suggest a breastfeeding infant go on overnights with a father he is unfamiliar with. You need to gradually let them develop a relationship - it's your job to encourage it because that is what is best for your child. Take it slowly but try to develop a cooperative relationship that will benefit your son for the rest of his life. Good luck. Can the kids be with me more than their Dad if we have joint custody? Rosetta's Question: Is it possible to get joint custody that will give me more time with the kids than my husband? He is a good dad but has a bad temper that scares even the kids sometimes. Brette's Answer: There are two kinds of joint custody. Joint legal custody refers to making decisions together. Joint physical custody means sharing time equally. Most people just say they have joint custody (meaning legal) and then create a parenting plan that divides the time up in a way that works for them. At what age can a child decide where to live? Nish's Question: How old does a child have to be to be able to decide which parent to live with? Brette's Answer: A child never gets to decide custody. The decision is up to the court and once a child reaches a certain age, the court begins to take his or her feelings into consideration. The older the child, the more seriously their preferences will be taken. Usually once a child is over 13 he or she has a large voice in the process. » Return to questions Topic: Preference of the child and custody Cory's Question: How old does a child have to be to be able to decide which parent to live with. I have joint custody with my ex and my child now (at ten) has decided that he would rather move in with me. Brette's Answer: Kids never get to make this decision. However, once a child has reached a certain age (and this can differ from state to state), the court takes the child's opinion into consideration. The older the child is, the more importance his or her opinion is going to have. However, the court can always rule against the child's opinion, if the court finds living with that parent is not in the child's best interest. Probably the best thing you can do is sit down with your child and your ex and try to work something out yourselves. Go see a mediator if you can't get anywhere. Reaching a settlement which is then just approved by the court is better for everyone as opposed to going through a trial. Good luck. » Return to top Can the child take the stand if we have to go to court? Rosa's Question: I have custody of my ten year old son. My son doesn't want any contact with his father because of the verbal abuse and infrequent visitation. If we go to court, can he take the stand to tell his side? Brette's Answer: It is likely the judge would talk to your son in chambers with a court reporter and the Law Guardian present. The transcript would be sealed so that the child has privacy and neither parent can access it. Will his Dad know what he tells the judge? Christine's Question: My ex and I share custody of our 9 year old son. My son has told me that his Dad has drinking 2 bottles of crown royal a day, and I feel that my son shouldn't be exposed to this. My ex was ordered not to drink when we first divorced, and I'm going to try and get full custody of my son because of the alcoholism that's going on now. I'm worried that if my son testifies about his Dad's drinking, that his Dad will blame him and get mad. What can I do? Brette's Answer: Your son would never testify in open court and would only talk to the judge in chambers. In most states, this is sealed. You could ask that your ex be ordered to attend an alcohol treatment program. Can he use my disability against me to gain custody? Christine's Question: My husband and I are one step away from divorce. I have a great career, great background, and can fully support my two small children. I make more money than my husband and I get disability money for partial loss of use of my left arm. I'm afraid that he will use my disability against me for custody of my children. Can he use this against me? Brette's Answer: Custody is decided based upon the best interest of the children. If you are able to adequately care for your children, and can have doctors or therapists testify about that (or have people to help you if you aren't able to) should your husband raise the issue, it's nothing to be concerned about. There are many disabled parents raising children alone and it's only an issue if you can't adequately care for them. » Return to questions He threatens to take my son if we ever get divorce. Stephanie's Question: I am currently married and the mother of a 2 year old son. My husband threatens to take my son away from me if we ever divorce. He doesn't do anything with him... no diaper change, no bath... maybe play every now and again if my son is not "whiney". My son is my life and he is very attached to me. Can you please give me some advice on what I can do to keep my son if it comes to a divorce? Brette's Answer: Since you are the primary caretaker, it is highly unlikely your husband would be able to get custody of your son. If you are concerned, you should start to keep a journal and document how much time he spends with your son and the times he rejects the child. Your goal is to be able to offer proof that he is not a very involved parent. This is evidence you could use should you ever have to face a custody case. » Return to questions Can he get custody because me and the kids moved out? Nadine's Question: My husband and I have been split for a year, and I left because he didn't spend time with the kids and ran up huge debts. He just got a lawyer, and now he says that he will take away the kids and all the belongings we have because I left the house with the kids. While we were separated, we both met other people and I am now 10 weeks pregnant. Now he says that just because of that he can take the kids. I have someone to represent me but have not heard anything from his attorney as yet. Can he do this and take the kids away? Brette's Answer: You need to set up an appointment with your new attorney and go in and have a talk. Your ex is not a legal expert, so don't believe a word of what he says. You need to get your information from your own attorney and stop listening to him. He's trying to scare you. Don't let it work. Custody is determined on what is in the best interests of the children. The court will look at all of the circumstances involved. How can I prepare myself for a custody battle? Misty's Question: My husband and I are going through a nasty divorce. We have 2 small children and he wants full custody of them. He has never taken them to the doctor, stayed home from work when they are sick, etc.. Now he is lying to the court system trying to say that I am unfit. I am so scared that they will give him the kids. I know that this would not be in the best interest for them. What can I do? Brette's Answer: Start to keep a calendar and a journal documenting everything you do. Try to the best of your recollection to recreate the past six months or year as well, writing down everything you've done and everything he's done. You need to be prepared to show the court that you are the primary caretaker of the children and that you are able to parent on your own. Make a list of all the things you do for your son each day. Prepare a photo album of photos of you with your son or son happy in your care. Having a place to live and a job are important. Making arrangements for school and child care are also important. Demonstrate that you have community ties through church, neighborhood, friends, etc. Be prepared to show why he is not qualified to have custody of the children. Find people who will testify about problems with his parenting and people who will testify about your skills as a parent. Get an attorney and discuss this with him or her. » Return to questions Topic: Custody and Filing For Divorce Stephanie's Question: Three weeks ago my husband decided he was not happy in our marriage and wants a divorce. Last weekend he moved in with someone he had been seeing. We have a 3 1/2 year old son, does it matter who files for the divorce due to custody issues? Brette's Answer: Who files for divorce has no impact on custody. Custody is decided based on the best interests of the child. Now, that being said, if one spouse has done egregious things that led to the divorce, it's possible a judge would be swayed by that when considering custody. You should talk to an attorney about your situation. You may also want to consider mediation which will allow the two of you to reach an agreement about custody and other aspects of the divorce based on what is best for your entire family. » Return to top Topic: Will the judge's bias towards men affect my case? GG's Question: What if I am unhappy with our current Judge because he has shown a bias opinion towards men? He has taken custody away from many mothers and this scares me, being that this is what we are going to trial for in 2 weeks. I have been a stay-at-home mom for 14 years and my husband is fighting for custody. What are the chances of the Judges personal feelings influencing this case? Brette's Answer: It's unlikely you're going to get far with your complaint about the judge. If you are concerned about the possible outcome of the case, I would suggest you try mediation, so that you and your spouse can work out a custody arrangement yourselves without a judge making decisions for you. » Return to top Dana's Question: Does the judge always rule with the recommendations of the court appointed evaluator? Brette's Answer: You need to consult an attorney in your state for state specifics, however an evaluation generally carries a lot of weight with a judge. » Return to top Will he get custody just because I'm in the military? Jacque's Question: I am the primary caregiver for our 18 month old twins. I carry them on my medical insurance, and support them financially pretty much by myself. I am in the military, and my husband has said that he will fight me for custody and that he thinks he will win since I am military. Please help! Brette's Answer: The fact that you are in the military has no impact on your ability to be a good parent. However, should you be deployed, he would most likely be able to get custody while you are gone. Topic: Military deployment and custody Kelly's Question: I am in the military and in the middle of a divorce. I want full custody of my 2 children. Do you think that the fact that I can deploy every year can affect me getting my kids? Brette's Answer: Custody is determined by looking at the entire situation and deciding what is best for the child. If you want custody and may have to deploy, you should come up with a solid plan for who would care for your child while you are away. If possible, you and your spouse could agree that he would care for your child should this happen. » Return to top Will I get custody if their father is in jail? Denise's Question: If a person goes to jail and the other person files for a divorce does the person filing for a divorce automatically get custody over any children they have together? Brette's Answer: Yes, it's pretty automatic if the other parent is in jail. How is custody affected if he's been convicted of a crime? Tasha's Question: I am going through a divorce. If my husband has a criminal record, how would this effect a custody battle? Brette's Answer: Criminal records and convictions always have an impact on custody. I can't tell you what the result will be because custody is decided by looking at all of the factors and a decision is made based on what is best for the child. A parent with a record is at a disadvantage. » Return to top Can he get custody if he's abusive to me and the kids? Mary's Question: I have always been a stay at home mom, and am currently seeking a divorce. My husband has been mentally and physically abusing me for years and recently became physically abusive to my youngest daughter. I never reported the physical abuse to the police because I was afraid of what would happen. What kind of chance do I have as far as custody of the children? Brette's Answer: First, you need to locate family and friends who can testify about the abuse and the fact that you have been the sole caretaker. You also need to report the abuse of your daughter and have it investigated. From what you've said, it is doubtful he would be able to get custody if you can prove the abuse. You need a good lawyer who can present a good case for you. » Return to top Is joint physical custody possible if he's an alcoholic? Amy's Question: My husband is a severe alcoholic who has admitted to drug use in the last few months. He wants a joint physical custody arrangement in which the kids live 2 months at a time with each parent. He as a Child Protective Services founded report against him, 2 DUI's, and 6 police department domestic violence reports against him in the last three years. What can I do? Brette's Answer: The documentation you have is compelling evidence that your husband should not have custody and I don't know why you you would agree to allow him to have them 2 months at a time. You need to have sole custody of these children and if he wants visitation, I would want it to be supervised, at least until he completes a drug and alcohol rehabilitation program. Just present the court with your facts. It would be even easier if you could get him to agree to your plan. If not, you have adequate evidence to convince a judge. » Return to top How can I prove that he's an alcoholic? Jane's Question: My husband is a severe alcoholic. While drinking on average 10-14 alcoholic beverages each night, he has never had a DUI, and he manages to hold on to a job. He drinks alone, and he keeps the problem well hidden, never the less, he is a neglectful parent and I believe my child is in danger when alone with him. I want full custody of our daughter because I feel that I cannot trust him with her. He has driven with her in the past when he has been under the influence. Can you give me some ideas on what the court will want to see to prove that he has a terrible drinking problem.? Brette's Answer: You could create a journal in which you document how many drinks he has each day and the things he does or says. You could set up a video camera to record his behavior. You could collect receipts from the liquor store. You could take photos of him passed out surrounded by bottles as well if that's possible. You could request an alcohol evaluation be done once you have a case in progress. If the court won't order that, you can have other people testify about his behavior and drinking problem. » Return to top Topic: Can he get custody because of my past mistakes? Krista's Question: My husband is upset that I am the one who left and won't come to an agreement on custody of our son. Since we've been split, he has repeatedly called Child Protective Services on me. Unfortunately, I did fail one drug test, but I took a 10 week class and had the charges dismissed. My ex is no angel either. Since we split, he as had a DWI, he works two full-time jobs, has a pregnant girlfriend, and doesn't help with any of the expenses for our son. I have an attorney, but my husband still says that he will arrange it where I will never see my son again. Do I have any chance of getting custody since I messed up that one time? Brette's Answer: I'm glad to hear you have an attorney. As he or she will probably reassure you, it sounds like you're doing all the right things. Everyone makes mistakes, and what the court is interested in is determining who can best care for the child. It sounds like you are that person. Don't let your ex intimidate you. Getting an attorney was a smart thing to do. Try to work with your attorney to put together evidence showing all the ways in which you are a good mother. Keep a journal and document everything that happens. » Return to top Deborah's Question: As terrible as this sounds, my husband forced me to commit adultery, now we are getting a divorce. Will this affect me getting child custody of my 2 children? Brette's Answer: Custody is based on the best interests of the children and is not related to the grounds for divorce or infidelity, unless it in some way impacted the children. You should talk to an attorney so that you can discuss the factors that will impact custody in your case. Mediation is another option that would allow you and your spouse to decide together how custody will be arranged. » Return to top Will it affect custody if I get pregnant by another man? Anne's Question: My husband and I have been separated for about a year now. We are in the middle of a divorce and can't decide on child custody for my son, since my husband was very abusive during our relationship. I'm currently dating someone else and just found out I'm pregnant, not by my legal husband. Can this effect my getting custody of my son? Brette's Answer: No. Custody is decided by what is in the best interest of the child. This requires examining all of the circumstances. If you plan to live with your new partner, he would be a factor. If he is a good person, it shouldn't be a problem. Topic: Establishing custody after the divorce Cristine's Question: I let my ex have physical custody of the kids during our separation and this was a huge mistake. Since our divorce, he has moved 5 times, lost 6 jobs, and my kids have changed schools 5 times. There is no legal custody papers at this time. I pay child support voluntarily, the children's medical insurance, and buy them clothes and anything else they need. I recently found out that their father is drinking a lot, and my son has found his drugs. What chances do I have to get legal custody of my children? He won't let me see my children on a regular basis, and now I can't even talk to them. How do I prove that I'm a better parent if I have been denied the right to be involved in my children's lives? How do I prove that he is drinking doing drugs? What legal rights do I have to just go and pick them up? Brette's Answer: An attorney will be able to help you work through these questions. In general though, you need to gather evidence. You need photos and people who are willing testify about what they know or have seen. It is also helpful to keep a journal where you detail everything that happens and a calendar that shows when your scheduled visitation was and when it was denied. Your own testimony will be important. If he is denying you visitation, you have a very good case. You also need to present evidence that shows you are a good parent and can provide and care for your children. You cannot go pick your children up unless it is your scheduled time, however an attorney can help you go to court and seek an emergency temporary order of custody. » Return to top Copyright © WomansDivorce.com. All rights reserved.
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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