Wondering who gets the kids in a divorce and how it is determined? As you might imagine, a lot plays into it. First, let’s talk about the different types of custody.
Joint Physical Custody, Sole Physical Custody and Legal Custody
These are the three main types of custody that come out of a divorce settlement.
Joint Physical Custody is when parents are required to share time with the children. It doesn’t necessarily mean it’s a 50-50 split though. It might be that one parent takes the kids from Monday-Friday and the other has them Saturday and Sunday. Or one parent has the kids everyday except for Wednesday.
It just depends on the family’s circumstances.
Sole Physical Custody is when the children always stay with one parent and the other parent is allowed visitation rights. This is seen as less “equal” than joint custody, although there is one advantage: the kids are always staying in the same place.
Legal Custody refers to the right for a parent to make decisions on the child’s upbringing. This includes, but isn’t limited to, things such as education, religious guidance and medical care.
Now that we’ve covered the different types of custody, let’s talk about how it’s decided.
How a Custody is Determined in a Divorce
There are a few different ways families can work out who gets custody.
Information negotiation is when the parents work it out between themselves. They can do this alongside their attorneys or on their own. Either way, this works best if an attorney is brought in to finalize the agreement.
Mediation is a step up from information negotiation. If a family tried to negotiate on their own and couldn’t come to an agreement, this is the next thing they should try. Mediation is a structured process that includes a neutral third party to finalize the terms of the custody.
Family court is the last part of the process. If a couple can’t come to terms, it may end up in court where the judge is presented the facts and makes a decision. The court’s goal is in the “best interest of the child,” which means they’ll consider a number of things in the decision:
- How old are the children?
- What kind of relationship do the kids have with each parent?
- What is each parent’s current living situation?
- Is there evidence of abuse or neglect from either parent?
- Which parent does the child want to stay with?
- How stable is each parent’s environment?
Who Usually Gets Custody in a Divorce?
Unfortunately there’s no black-or-white answer here, it just doesn’t work that way. Every single family has a different set of circumstances.
For example, maybe one family has a father that works very long hours but a mother who is shown to neglect her children. The court may struggle with that decision since the father may not have much time to take care of the kids but the mother’s evidence of neglect isn’t good for the kids either.
For some personalized guidance on getting custody of the kids in your divorce, send us an email at firstname.lastname@example.org. We’d love to help.