How is Custody Determined - Answers From The Expert

How is custody determined during a divorce case or custody conflict? This is something many parents worry about when they are no longer with the other parent.

By WomansDivorce | Answers by Brette Sember, J.D.

Should your custody case go to trial, you should realize that the judge will base his or her decision on what would be considered in the "best interests of the child". While the exact standards for making this determination vary from state to state, some of the factors considered in making the decision include:

  • The relationship between the child and each parent; 

  • The age of the child; 

  • The wishes of each parent; 

  • The child's preferences regarding custody if they are old enough to express their desires; 

  • Each parent’s ability to take care of their child’s needs; 

  • Which parent has been the primary caretaker prior to the divorce or separation; 

  • Each parent’s ability to provide stability and continuity in the child’s life; 

  • The mental and physical health of individuals involved in the child’s life; 

  • Each parent’s willingness to encourage an ongoing relationship between the child and the other parent; 

  • The child’s attachment to the family home, school system, and community; 

  • The distance between the parent’s homes; 

  • Evidence of domestic violence, abuse, or neglect by either parent; 

  • A history of mental health issues, substance abuse or criminal activity of either parent.

While these are the general factors which are considered when determining child custody, 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 answers:

How is custody determined in these specific situations?

General questions about how custody is determined

  • What kind of custody arrangements are there?
  • How does the judge decide who is the better parent?
  • Is custody affected by who files for a divorce first?
  • Why are judges so lenient with walk-away dads?
  • Will the judge's bias towards men affect my case?
  • What can I do if we can't reach a custody agreement?
  • How can I prepare for a custody battle?
  • How do I fight for custody if I don't have a lawyer?
  • Is the custody decision based on the evaluators' recommendations?
  • Can the kids be with me more than my ex if we have joint custody?
  • What can I use to get custody of the baby and give him this visitation?
  • Can custody be established after the divorce?
  • Factors in Determining Custody

    Input of the Child Regarding Custody

    Living Arrangements and Custody

    The Impact of Significant Others on Custody

    How Disabilities and Mental Health Impact Custody

    How custody is determined

    What kind of custody arrangements are there?

    Brette's Answer: 1) Sole legal and physical custody would mean you make all decisions and he has no rights to see her. 2) Sole legal and joint physical custody means you make all legal decisions and you share time with her. You would be the residential parent, the one your child lives with and he would have visitation. 3) Joint legal and physical custody means you make decisions together and share time.

    How does the judge decide who is the better parent?

    Elena's Question: We're 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.

    Is custody affected by who files for divorce first?

    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. However, I would say there is an advantage to the person who files first simply because that person is asking rather than defending. 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 might also want to consider using mediation to settle your custody issues. Mediation will allow the two of you to reach an agreement about custody and other aspects of the divorce based on what would be best for your entire family.

    Why are judges so lenient with walk-away dads?

    Kathy's Question: I have questions about my grandchildren's custody.... any advice would be helpful. It just seems that daddy's walk away, and then the judges just hand them whatever they want. The best interest of the child is not always served by what the judge hands down.

    Brette's Answer: Judges makes custody decisions based on what is in the children's best interests. Having two parents involved in a child's life is almost always in their best interests. Fathers who do not take advantage of the time they have been granted are the ones who lose out. If a parent regularly fails to use their scheduled time, the court can scale it back because having scheduled visits that are constantly cancelled is painful and hard for the children. 

    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.

    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.

    How can I prepare for a custody battle?

    Misty Asks: We're going through a nasty divorce and 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.

    Brette's Answer: Getting an attorney is the first step. That's the best way to maximize your chances and prepare a good case. 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. This will allow you to show the court that you are the primary caretaker of the children and that you are able to parent on your own. Write down and document everything you do for your son each day. Prepare a photo album of photos of you with your son or son happy in your care.

    Anything you have prepared yourself, such a journal, photos, or log would be admissible in court. Other documents, such as school records or bank records must be authenticated, so you will need to talk to the court clerk ASAP about subpoenas if you want to do something like that.

    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.

    How do I fight for custody if I don't have a lawyer?

    Stephanie's Question: I received divorce papers from my husband and was shocked to see that he wants the majority of time with our 10 year old daughter. He walked out on us 2 years ago to pursue a relationship with the woman he was having an affair with. Being broke, I had to file the answers by myself. Legal Aid told me that with the attorney he has, she is too aggressive for anyone to pick up my case. My husband was arrested for hitting me six years ago and was ordered to take AA classes by his place of employment. How should I proceed when I'm on my own? Our daughter has lived with me in the same place since birth.

    Brette's Answer: Lawyers always ask for more than what they think they can get. You need to document everything. Organize people who can testify on your behalf about what a good parent you are and what he is like. You will need to get the records from the arrest. Speak with the court clerk on how to do this. If you can find a way to afford an attorney I would really recommend it.

    Is the custody decision based on the evaluators' recommendations?

    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.

    Can the kids be with me more than my ex 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.

    What can I use to get custody of the baby and give him this visitation?

    Christina's Question: I am currently 8 months pregnant. He is 21 and I am 35, and we never lived together. The first 4 months of my pregnancy he pressured me to abort, but now he wants half custody. I am open to visitation every other weekend, once during the week, and alternating holidays. But I am not comfortable with 50/50. His schedule and income is unpredictable, he lives with his parents, and his father is an alcoholic. They also rent out two rooms to strangers. He has no experience with children and doesn't want to pay for child support. On the other hand, I support myself and have experience with children. I did try to negotiate child support and he said I couldn't make him pay if he didn't have a job. What can I use in my favor to get sole custody and give him this visitation?

    Brette's Answer: Everything you have mentioned will be important. It sounds like your plan is reasonable. It is not up to him whether he pays child support. The court will order child support.

    Can custody be established 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 are 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 and 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 totestifyyabout 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.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.

    Factors in Determining Custody

    How is custody determined if we're not married?

    Anita's Question: I am in a common-law relationship and have a child and not sure where to start. What happens to my child and how is it decided where he stays? We are both great parents and are in his life the same amount of time. I have been holding back and not leaving because I cannot live without my son.

    Brette: Custody is always handled the same way, whether you were married or nor. It is decided based on what will be in the best interest of your child. Good luck.

    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.

    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: Custody decisions have 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. 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 without 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: Custody and visitation are decided based on what is in the child's best interest. Your problems with the father are separate from his potential relationship with the child. In most cases, it is best for the child to have strong relationships with both parents. 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.

    I think you need to take a deep breath and remind yourself that he loves your son and wants and deserves to be part of his life. 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.

    Does it affect custody if our child was born before we married?

    Jill's Question: Does anything change if the child was born before the marriage, but is the biological child of the husband and wife seeking divorce?

    Brette's Answer: No, it shouldn't, unless paternity is in question.

    Will having custody from a prior marriage affect custody in our divorce?

    Lauren's Question: My ex has physical custody of a child from a previous marriage. Our daughter that we have together is 3 years old. She is also a Type 1 Diabetic. I am her primary caregiver for everything, including the 6 times a day she has to have her blood sugar checked, and her twice daily shots. I want a joint managing conservatorship with myself having the sole physical custody. Does the fact that my ex has sole physical custody of his son increase the chances that he would get physical custody of our daughter?

    Brette's Answer: Each child is a different situation. Prepare to show the court everything you've explained to me about her care.

    How is custody affected if he hasn't let me see our son for 6 months?

    Jo's Question: The father of my 7 1/2 month old son has not allowed me to see our son for the last six months. I finally got a suit effecting parent child relationship filed. If he's had him that long and I haven't even been able to see him, will this make it where he automatically gets custody?

    Brette's Answer: Refusing to allow a child to see the other parent is parental alienation and can have an adverse effect on custody, however there's no way to know for sure without knowing all the details of your situation. I would recommend hiring an attorney to help you.

    What are my custody rights if my son stays with my ex for half the year?

    Nisha: We're trying to work out an agreement were my ex can keep my son for 6 months out of the year, but I don't want to give him full custody. 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 to court for violating your custody order.

    Can he get custody if he watches the kids when I work?

    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: 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.

    Can he get full custody if he's only seen our child once?

    Janet's Question: My daughter is 2 years of age, and her father is asking for full custody. He has been paying child support, but has only seen her once in her life at age 1. She has no idea really who he is. I never thought it would come to this so I never filed custody papers. PLEASE tell me what are my chances here?

    Brette's Answer: It is unlikely he would get custody if he has no relationship with her. However, what will likely happen is that he will be given visitation and they will develop a relationship.

    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.

    Can I get custody if he's violent and threatening?

    Lorraine's Question: My ex and I have a 1 year old together. He hasn't helped out financially even though I ask him to buy stuff for our daughter (which he refuses to do). He's a violent and threatening man. For example, one time he locked her in the truck with the windows closed while he started a scene at my house. We all tried to get him to give her to me and told him she could suffocate, but he didn't care. He was screaming and punching the truck, which was making her nervous. We told him to stop and he said she's his daughter and he does what he wants. Do you think with 7-8 testimonials about his crazy behavior and all the times I've had to call the cops on him that I can get the full custody? I don't care if I don't get any child support.

    Brette's Answer: If it is true that he locked your child in a truck, you need to call social services or family and children's services (whatever it is called in your state) and report him. That qualifies as abuse. You need to get everyone who saw that incident to come to court for your custody hearing and testify. If this in fact happened, there is no question that you will get custody. I would also tell you that if you want financial support, you need to file for child support. Stop asking him to buy things. It just causes conflict. Good luck.

    Why did he get joint custody if I have proof he abused me for years?

    Jessica's Question: I was only 17 when I had my son, who is now 3 years old. I come from a long domestic violence relationship with his father and have many police reports to back it up. I couldn't take the abuse anymore and I left. I showed the judge all my reports yet he was granted joint custody when we got divorce. Why was it allowed?

    Brette's Answer: Because abuse of you does not equal abuse of your child. Keep a journal, take photos of ANY marks and call child protective services if you suspect anything is happening to your child.

    Will I lose 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. You can read more about this by following this link - Military Child Custody and Visitation.

    Will possible deployment affect my chance of getting 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 will 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.

    How can I make sure that he has no custody or visitation?

    Alina's Question: My estranged husband suddenly wants custody of our daughter. We've been separated for a year and a 1/2. I want to make sure that he has no contact with her, neither custody nor visitation. I fear for her safety if he's with her. How can I prevent that from happening?

    Brette's Answer: You can file for sole custody. You're going to need a very good reason for this though, so get your ducks in a row to convince the court. It's very rare that a judge will order no contact with a parent, unless there has been abuse or neglect, or the parent lives a very dangerous life.

    Can I get custody if he doesn't take care of our daughter properly?

    Kristy's Question: I have a 3 year old daughter with my ex. Every time she goes to his house I find a new scar, a burn from a cigarette, or she is sick. He is never there when I drop her off or pick her up, and he and his grandparents don't watch her closely enough, give her a bath, or change her clothes while she is there. If I go to court to get custody, can I win?

    Brette's Answer: The things you are seeing are disturbing. You should photograph the injuries and keep a log. I can't say what will happen, but it sounds compelling. Good luck.

    Input of the Child Regarding Custody

    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.

    Will the court only listen to the child when deciding custody?

    Milady's Question: I am in an emotionally abusive marriage and now my husband wants a divorce. He doesn't want me to have a relationship with my daughter. He has been telling her that what I do or say is wrong so that she will think I'm stupid. He gets upset when my daughter tells or shows me things, and doesn't let me take her to swim practice or help out with her homework. He decides what's good for her and I have no say. He's tried all kinds of things to build his relationship with my daughter so that she is against me. Now I am afraid I will lose my custody of my daughter since the court only listens to what the child has to say, but the court doesn't know that she is against me because of her Dad.

    Brette's Answer: The court does not just listen to the child. Custody is determined based on what is best for the child. Your job is to help the court see what your husband has been doing. Show how you are a good parent and he is a bad parent.

    How can I increase my odds of living with my dad if I'm only 15?

    Mariah's Question: I know that I don't have a say, but I am a 15 year old teen that is going through a child custody situation that I'm very stressed and frustrated about it. The reason why is because my dad has gone to court and he said that they won't even consider what I have to say. It is irritating because the judge is taking me away from my dad and took me out of school and won't let me finish. What I can do to give myself more of a chance with living with my dad and being happy.

    Brette's Answer: I know how hard your situation is and how frustrating it must feel to have other people decide things about your life. Is there a guardian ad litem on your case? If not, your dad could request one. This would be an attorney whose job is to represent you and what is in your best interest. Your dad could also suggest that he and your mom go to a mediator to try to work out something that would make everyone happy-you included. The important thing to remember is that you have two parents and they both love you. The court does the best it can in making these decisions.

    How much does the child's preference affect custody decisions?

    Pam's Question: I have a 15 and 10 year old sons. At what age can the children decide where they live instead of going through a custody battle?

    Brette's Answer: Children don't get to decide - that puts too much pressure on them. 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. Your 15 year olds opinion will be important. Your 10 year olds will be considered.

    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 children and your ex and try to work something out yourselves. If the kids feel very strongly, can you work out an agreement that takes that into consideration? 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. (Read more about Split Custody Arrangements)

    Will my opinion sway the court to let me live with my Dad if I'm 17?

    Eva Marie's Question: My parents going through a divorce. I want to live with my father due to the incompetence that my mother has shown when I have needed her help, the harassment via text I have received from her boyfriend (her affair is why she wants a divorce), and simply wanting to finish my last year of high school before I graduate. I am 17 years old and have 5 siblings (4 of which are minors). My father has always been a good parent. I am aware that I am not able to choose which parent I want to live with, but will my opinion be significant enough to sway the court towards living with my father?

    Brette's Answer: Your opinion should matter a lot, but it will depend on what kind of schedule can be set up. It will be important that you see not only your mom but your siblings.

    Does a 17 year old teen mom have to go live with her dad?

    Tracy's Question: Our daughter is 17 and has a 4 month old daughter. In our divorce, she and her baby are supposed to go live with him which is over 2,000 miles away. This is the only place our daughter knows, and he has only seen the baby once when she was just two weeks old. Her child will only be 8 months old when she moves out there. Our daughter is dreading this. What can I do?

    Brette's Answer: Your daughter is old enough to tell the court what she wants and her opinion will likely be decisive in this case.

    Do I need a lawyer if my child is old enough to decide where to live?

    Jennifer's Question: If my daughter is of age to have a say in which parent she wants to live with, would I still need a lawyer?

    Brette's Answer: It's always a good idea to have an attorney if you can afford it, particularly if the other party has one. A child's opinion is never completely decisive - it is always up to the court.

    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.

    Living Arrangements and Child Custody

    Can I get physical custody if the kids live with me?

    Marci's Question: I have an 8 and 5 year old with my husband of 10 years. He has cheated throughout our marriage and is currently in a relationship with someone else. I want sole physical custody because he is working in Michigan and I live in Florida with the kids. What do you think my chances are?

    Brette's Answer: Your chances are good. Custody is decided based on what's in the best interest of the child. This is determined by considering all the factors in the case, but the adultery has nothing to do with this. The fact that you live in separate states and the kids currently are with you means you have the edge. Since you have been the primary caretaker, the court is likely to continue that. However, it is almost always in the child's best interest to have time with the other parent, so you do need to think about how to create a reasonable visitation plan.

    How will it 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 affect 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.

    Can I get custody if I don't have a separate bedroom for each kid?

    Cassie's Question: I am looking to apply for custody of my two young children, a five year old girl and a six year old boy. If I don't have a separate bedroom for each child (because they are different sexes), will a judge deny me custody? My ex has two other children with another girl and they live in a two bedroom apartment.

    Brette's Answer: Generally there is no hard and fast rule about this, but it is usually preferred that children of that age have separate rooms. Since the father doesn't have this either, it shouldn't matter.

    Will my living arrangements affect the custody decision?

    Michelle's Question: If I move out with our 2 1/2 year old son, is it better for me, for custody purposes, to live with a friend while getting back on my feet or moving directly into a rented house for a more permanent residence?

    Brette's Answer: Permanency is always a good thing when it comes to custody, however sometimes you have to do what is possible for you at the time. It is important to appear stable. Anyone you live with will be important - any problems with that person will hurt your case.

    Will he get custody just because he's keeping the house?

    Linda's Question: I am in the process of a divorce. We have a 3 1/2 year old son. I am the only parent that prepares meals, cleans the house and does the majority of cuddling and correcting. I don't doubt he loves our son, but I do not believe he could do more than a couple hours outing on a Saturday. He owns our townhouse and 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. You need to start a journal of everything you do and he does. Put together evidence that will support your point of view. It sounds to me as if you would not object to a reasonable visitation plan and you just need to justify being the residential parent.

    It is true that courts see some benefit to keeping children in the same home for stability (custody first, residency second), but that certainly isn't always the case. You just need to show you are the primary caretaker.

    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 the circumstances involved.

    Which living arrangement will increase my odds for custody?

    Victoria: We have a 2 1/2 year old daughter and are getting divorced. I have two places where I could live. One would be with my boyfriend. His sister and her 2 kids are currently staying there, so we would take the basement and my daughter would have her own room. Or I could move in with a guy friend in a 2 bedroom apartment. I would share one room with my daughter. Which one of these placements would I be better off taking? I will be going back to work and have child care (an actual facility) in line for when I start. Whereas my ex would have his dad come and watch her while he is at work. I think it would be healthier for her to interact with other children and be in a "school" setting. Could any of that help me get more custody or placement? I can't afford an attorney.

    Brette's Answer: I can't tell you where to live. You need to decide what you think would be the best situation for your child. You should consider what kind of conditions the homes are in and what are the people like who will be living there. You should document everything you do for your child and all the time you spend with her. If you have a child care facility lined up, get information about it and be prepared to testify about the arrangements. You could suggest to your ex that you go to mediation to try to resolve this together.

    Will it affect the custody decision if I live with my boyfriend?

    Alex's Question: My child is 9 months old and I'm currently going through a child visitation/custody case with the father. I am now dating someone else and have been for a year. Will it be okay if I start to live with this person or will it affect the court's opinion of me?

    Brette's Answer: Whenever you live with someone it becomes a consideration in custody because that person is part of the child's environment.

    Can my ex seek custody if I live with my Dad who is on probation?

    Diana's Question: I have filed for sole legal custody/primary physical custody of my two yr. old son with my ex having shared visitation. I live with my parents and my father is on 5 years of probation and reports monthly and follows all the rules. His probation officer says it is alright to drink the occasional beer as long as he does not create any problems in our home. My son's father is threatening to use this against me in seeking custody. Is it possible?

    Brette's Answer: Yes, anyone who lives with you is fair game when it comes to custody because they have influence over and contact with your child. Should you go to trial, you could have his probation officer testify about his behavior.

    Will I get custody if my ex is an alcoholic and my step-son a sex offender?

    Stacy Asks: I am a resident of KY where a law was passed in 2018 that gives automatic joint 50/50 custody to both parents assuming they are fit. My 16 yr. old step son has been convicted of 1st degree rape and sexual abuse of his 7 year old half-sister and has sexually abused his 7 yr. old half-brother (both on his mom's side). He is currently serving time in a sexual offender treatment program. There is a order from the judge in place for no contact with either of those two siblings, but it doesn’t include my 4 year old son. My husband and I are separating and he has informed me he plans to ask the judge to lift the no-contact order and move my step son in here at our house. I am scared to death that my step son will do the same thing to my child as he did his other sibling. Will a judge consider that in a custody case and not automatically order 50/50 custody? With my step son’s rape conviction and registration as a juvenile sex offender, as well as my husband's severe alcohol addiction, is there a possibility that I can get custody and only visitations for my husband with the agreement that my step son cannot be there? 

    Brette's Answer: You should talk with an attorney who can discuss the law and the factors your state considers in awarding custody. Most states do consider the home environment and if there is a convicted sex offender in the home, that would be of great concern to the judge. You need an attorney who can help you present your case. 

    The Impact of Significant Others on Custody

    Could I lose custody because I spent the night with my boyfriend?

    K Asks: We've been separated for 2 months now. I have begun seeing someone else, but have not brought the new guy around the children and we are not official yet because of the divorce. I am very worried because I spent the night at this guy's house. My ex claims he has me on video leaving the guys house. Do you think he can use that against me in court to gain custody of our kids?

    Brette's Answer: Spending time with a new boyfriend should not affect custody. What you do in your own time is your own business unless it has some impact on your kids. It could be an issue in your divorce though, so you should talk to an attorney.

    Will an affair impact who gets custody?

    Janine's Question: My daughter is going through a divorce. She has filed first and now I have discovered she is having an affair during this process and before. My son-in-law has not. She is under the misconception that her affair will not matter in custody because she has been the main provider. Am I correct that she could very possibly loose her daughter?

    Brette: Custody is decided based on what is in the best interest of the children by considering the parents' lifestyles, residence, schedule, parenting skills, past history, and abilities. An affair would only matter if she was placing her child in situations with the man that are unsafe, not beneficial or otherwise concerning to the court.

    That being said, it is true some judges form a negative opinion of a parent who cheats so it can paint her as the bad guy in the situation. She needs to focus on her child and the situation she is providing.

    Can he get custody just because I had an affair?

    Marie's Question: While in the process separating from my husband I had a brief affair. My husband agreed to go to counseling for anger and abuse, and I told him about my affair so we could work on our marriage. Now he is threatening me with taking my son due to "infidelity" even though he has cheated on me, hit me and emotionally abuses me. What rights do I have? Am I allowed to take my son out of state to family or friends?

    Brette's Answer: Your affair should have no impact on custody. Custody is based on what will be in the best interest of your child and is not related to the grounds for divorce or infidelity, unless it in some way impacted your child. For example, if the person you are living with is a danger or bad influence for the children, then it is a concern.

    If there is no current custody order you can take your child out of state, however your husband can then file papers seeking to have you return. You need to tread carefully. You should speak with an attorney so that you can discuss the factors that will impact custody in your case.

    Will it affect custody if I get pregnant by another man?

    Anne's Question: After being separated for about a year, we are currently going through a divorce. We haven't reached an agreement about custody our 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 affect 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.

    Could I lose custody because I'm in a same sex relationship?

    Crystal's Question: Could I lose custody of my children because I'm in a same sex relationship? My ex and I have two children together, 3 and 5. I'm the custodial parent and he just has visitations that he rarely utilizes. I recently filed a motion to modify our custody agreement requesting supervised visits because of his excessive drug use and criminal record. He claims that my sexual preference is against the morals and values he wishes for his children. My partner is great with the kids and they absolutely adore her. What could possibly happen?

    Brette's Answer: You need an attorney. In most states this is explicitly not an issue, however it honestly depends on the judge you get. If you get someone who is biased, it could be difficult.

    Can he get full custody because I'm a lesbian?

    Jessica's Question: Can the father get full custody if I am a lesbian and I have joint custody. Prior to our separation, a friend of mine moved in with us. A year after our divorce I stared having a lesbian relationship with her. She was arrested for another DUI and went to a treatment facility for breaking probation. She has been sober for two years and in AA. My ex is threatening to sue for custody and take my children because of my relationship with her and because she lives me with me and keeps our children. How is custody determined in these types of situations?

    Brette's Answer: Sexual orientation should have no impact on custody! Considering that he had no objection to her living in the home when he was there, he doesn't have much to complain about. Her record will be of concern to the court however. You should consult with an attorney who can help you present the strongest case possible. Good luck.

    How Disabilities and Mental Health Impact Custody

    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.

    Can he use my disability against me if I need basic help sometimes?

    Tiffany's Question: My husband and I have a five month old. We are heading towards divorce but neither of us has filed yet. I recently have filed for disability due to severe arthritis. In my paper work I did have to state that I do need help on some days caring for my daughter, sometimes with doing laundry and basic household chores, getting dressed, and stuff like that. Not all the time though. But I cannot work because I have difficult days sometimes. Can my husband use this against me when it comes down to custody of my daughter?

    Brette's Answer: You need to present a plan for how your daughter will be cared for on days you are having a flare. I think the problem may be that flares are unpredictable (I have a daughter and husband with RA so I am familiar with the disease) and how will you manage if you suddenly are flaring and you're alone with her. If you can present a plan that shows you have adequate assistance available it will help you.

    How is custody determined if we both have disabilities?

    Laura's Question: I have not filed for divorce yet, but I am currently filing for disability benefits due to my Rheumatoid Arthritis. Can my husband use this against me to get custody of my daughter even if I have been a stay-at-home mom for all 3 years of her life and am able to take care of her? I don't want him to have any custody because of his mental health issues. Am I able to use that in court or is it his disability versus mine?

    Brette's Answer: Your ability to physically handle the demands of child care will be an issue the court will be interested in. However, mental health issues are also of concern. You probably will need a doctor to testify as to your limitations and abilities.

    Can he use the fact that I take antidepressants against me?

    Maria's Question: If I am taking an antidepressant or anti-anxiety medication, can he use it against me in a divorce?

    Brette's Answer: The parents' mental and physical health can be considered by the court in most states. However if your condition is controlled and you have been stable for a while it generally is not a big problem. Talk to an attorney about the laws in your state.

    Can he use my history of depression against me?

    Casey's Question: Can my husband get full custody if he is living with his parents, never at home with the kids because of work, is mentally and verbally abusive, has a 20 year old girlfriend living with them, and also abuses cocaine? I have a past history of depression and was hospitalized over a year ago and he is trying to use this against me in court.

    Brette's Answer: The fact that he lives at home and with his girlfriend is not necessarily a strike against him - it depends on what kind of environment it is and what the people are like. His drug abuse is a big concern. If he is mentally and physically abusive to your child, that is a major problem. Your history of depression is a concern as well. You need to get your doctor to testify as to your current condition and any ongoing treatment. The court is going to take of all the circumstances into consideration and make a decision about what is in the best interests of your child. Your job is to prove your case - show he is a danger to your child, has no time for him/her and does not provide a good environment while also showing the court that you provide a stable home.

    Will my bi-polar condition, job history, and affair affect custody?

    Shelbie's Question: We're getting a divorce due to mistrust and constant arguing. I have cheated more than once and have been caught. We have decided to try month on month off custody. He lives in WA and I want to go to Texas and try for full custody. Will my bi-polar, job history, cheating come into effect here? I just really want to screw him over because he told me he wouldn't let me take MY kids to Texas because he'd have to pay to fly them back and forth.

    Brette's Answer: I think you're approaching this with the wrong attitude. Custody is about what is best for the children. The court makes the decision based on what is in their best interest. Your goal should be to create a plan that benefits them, not that "screws over" your ex. Revenge and custody do not go together. If you go into this with that attitude I can guarantee you the judge and/or Law Guardian will be aware of it and will be detrimental to you.

    Being bi-polar is certainly a factor, but if it is well-controlled it should not be a problem. Cheating is not an issue, unless it has directly impacted the children. Your job history is of interest if there are problems there that impact your ability to parent.

    Could he get custody because I recently attempted suicide?

    Shannon's Question: I cheated on my husband and told him. He is now filling for a divorce. I have recently attempted to kill myself twice in one day and was put into the hospital as well as a mental institution for a week. If he filled for full custody what are the chances of this being granted?

    Brette's Answer: I'm sorry to hear about your situation. I can't really answer the question since there are so many factors - how recently this happened, what your diagnosis was, what treatment you've received, what your condition currently it, what your husband's living situation is, if your kids have special needs, what your housing situation is, and so on. Just on the bare facts I think legal custody could easily go to your spouse but I can't predict visitation plans without knowing all the other information. I think the most important thing is for you to get the right treatment. As you improve, so should your parenting situation. Best of luck to you!

    Can I lose custody if I attempted suicide before I got pregnant?

    Sharla's Question: Can I lose custody of my 6 month old son because I attempted suicide before I got pregnant? It was during a bad argument with my abusive husband.

    Brette's Answer: If there is a custody case and your ex alleges you are unable to care for the child or that being with you would not be in the child's best interests, it is possible. If you can show you received help and are not danger to yourself or anyone else it would help your case. You should see a family law attorney who can help you prepare a case.


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