Family Law

Deciding Who Gets Custody of Children in a Divorce

By Melissa Heinig, Attorney
Learn more about the different ways parents can resolve their custody issues in a divorce.

Custody Basics

Whether a couple is married or unmarried, ending a relationship is difficult. When children are involved, custody is often the most complicated and emotional topic to address.

Custody is divided into two parts: physical custody and legal custody. Physical custody refers to where the children will spend the majority of their time. If parents share joint physical custody, the children will spend an equal amount of time living with each parent. But if one parent has sole physical custody, the children will spend most of their time living with that parent. If one parent has sole custody—or if the children spend a substantial amount of time with only one parent— that parent is referred to as the “custodial” parent.

Legal custody refers to a parent’s right to make major medical, educational, and religious decisions for the children. A parent with sole legal custody doesn’t have to get the other parent’s permission before making these types of decisions, but with joint legal custody, both parents must agree.

Generally, when parents share joint legal custody, the custodial parent is also restricted from relocating the children without the other parent’s approval—or a court order. In Michigan, for example, if a custody order grants sole physical custody to one parent, and the parents share joint legal custody, the custodial parent can't move the child more than 100 miles from the current residence without the non-custodial parent’s agreement or a court order allowing the parent to move with the kids.

Can Couples Decide Custody on Their Own?

The best way to work out a custody arrangement is to consider what’s best for the family, taking into account each child’s:

  • physical and emotional needs
  • daily routines
  • adjustment to school, local community, friends, caretakers and relatives, and
  • any extracurricular activities.

Parents should set aside any hard feelings about the separation, sit down together, and review schedules, residences, school options, finances, and any other factors that might affect the children. Once they’ve reached a custody agreement, the parents should put all their terms into a writing that covers holidays, travel arrangements, visitation-related costs, and includes a detailed visitation schedule. When the custody agreement is signed, the parents should submit it to a family court judge in their jurisdiction for approval.

If the parents can’t agree, they may try child custody mediation. With mediation, the parents meet with a child custody mediator—a neutral third party who’s trained in custody issues and conflict resolution. The mediator’s job is to help the parents resolve their disagreements. If the parents can settle their custody issues, the mediator will submit a signed custody agreement to the court for review.

In either situation, the judge will ensure the agreement is in the best interest of the children. If the court approves the agreement, a judge will incorporate it into an official order, which both parents will be expected to follow. If the parents can’t agree on custody—either on their own or with a mediator’s help—they'll need to ask a court to decide.

How do Courts Make Custody Decisions?

First, one parent must file a motion (written request) for custody. The rules of where to file custody paperwork vary depending on the state, so parents need to verify this before filing. For example, in Michigan, parents must file custody motions in the county where their children reside.

Some courts require parents to participate in court-ordered child custody mediation. (Check with your local court to find out if this is a requirement.) It’s important to note that even if a judge orders parents to attend mediation, they aren’t required to sign an agreement. Parents should enter mediation with an open mind and in good faith, but if a parent doesn’t like the proposed custody terms, that parent can simply end the session. If the parents agree to the terms reached in mediation, they can sign a proposed custody agreement, which will become a binding order once the judge approves it.

If the parents can’t resolve their custody issues in mediation, the court will have to decide for them. The court may order a custody evaluation—which is basically an investigation to determine what custody arrangement would serve the child’s best interests.

In many states, the circuit courts have a special division, called “the friend of the court,” which is the agency that handles these custody investigations. In other states, the circuit court or family court will complete the custody evaluation, with help from court-appointed custody professionals, often referred to as custody evaluators. The custody evaluator will interview the child’s parents, teachers, relatives, and any other person who may have first-hand knowledge of the parents, the child, the child’s siblings and relatives (if any), and how the child relates to both parents.

In addition, courts in every state must also determine what would be in the child’s best interests by considering a specific set of factors. The best interest factors vary by state, but typically include:

  • each parent’s ability to meet the child’s physical needs, including the ability to provide clothing, housing, and food
  • each parent’s ability to love and guide the children
  • the child’s preference—if the child is of a sufficient age and/or maturity
  • the child’s educational and social record—how well the child is doing in school and socially, and
  • any history of domestic violence in the relationship.

At the end of the investigation, the custody evaluator will submit a report to the judge, which will include findings and a recommendation. A parent that disagrees with the recommendation can file an objection and ask the evaluator to reconsider. If both parents agree with the recommendation, it will become a court order.

If you have questions about child custody, you should contact an experienced family law attorney in your area.

Get Professional Help

Find a Child Custody lawyer
Practice Area:
Zip Code:
How It Works
  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys

Talk to a Divorce attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you