How Is Child Custody Determined?

The question you should be asking is, “What is in the child’s best interests?”

It has to do with happiness, security, and the parent who can provide the most promising future. It will depend on whatever the judge thinks is best, though.

As frustrating as that may sound, it provides a vital starting point for some of the most important discussions and decisions of your life.

You may attempt to reverse engineer the process. It is an emotional time for parents, but volatile thoughts are best put aside to focus on the well-being of the child.

Below, our experts discuss other critical factors in the child custody issue that might shed some light on the process.

Joint Custody Vs. Sole Custody

Most courts are in favor of joint custody, which means a discussion on visitation rights.

Sole or full custody is far more challenging for a parent to achieve.

Legal and physical custody define what we mean as well.

  • Legal custody refers to decision-making power over the child—schools and other primary considerations.
  • Physical custody refers to which parent (usually both) can share a living space with the child.

There may be joint legal custody and sole physical custody for the judge to decide, and this outcome will depend on the best interests of the child.

Key Factors to Determine Custody of a Child

The person awarded custody is known as the “primary custodial parent.”

Usually, parents share custody, but there will be only one primary custodial parent in the arrangement.

It is the person who spends the most time with the child and is most involved in their daily lives. The criteria include being responsible for taking the child to and from school, providing meals, and choosing a home.


  1. The wishes of the child and each of the parents
  2. The age of the child and each parent
  3. The distance between each parents’ homes
  4. Which parent resides in the home of origin (where the child was raised)
  5. The work schedule of each parent
  6. The lifestyles of each parent
  7. The ability to provide necessities, such as clothing, food, and shelter
  8. The ability to provide a stable and loving environment
  9. The developmental and emotional needs of the child
  10. The history and quality of the relationship of the child with each parent
  11. How willing and able the parent is to communicate with the other person on child-related issues
  12. How mentally and physically fit the parent is to care for the child
  13. Evidence of physical or sexual abuse, domestic violence between parents, addiction, or neglectful behavior
  14. Criminal activity on the part of either parent
  15. Any other questionable behavior that suggests why a parent may not be the best choice for the primary custodian.

The points above outline an idea of the “best interests of the child” in the eyes of the court.

A family lawyer in your area familiar with similar cases, and the local judges, can better pinpoint a definition for your unique situation.

How the Parent Decides Custody

The decision is primarily determined by the actions of the parents.

The one who seeks counsel, attends all the hearings, files and completes all necessary paperwork, and maintains a professional and collected demeanor has the upper hand in achieving custody.

How Child Custody Is Determined in Non-Divorce Cases

In some states, the unmarried biological mother of the child retains primary custody regardless of the situation.

Judges are still inclined to award a form of joint custody if they see it as beneficial for the child. It presents a more complicated ruling for the judges if the couple is unmarried, though.

Child custody is never a straightforward issue, so seek expert advice and remember to focus on the best interests of the child.