Deciding Who Gets Custody FAQs

Q: Who gets custody of the children when the parents file for divorce?

The parents can reach a settlement on who gets custody and mutually decide a visitation schedule. The parents can mutually negotiate with one other directly or through their attorneys or use alternative dispute resolution mechanisms like collaborative law process or mediation. If the parents cannot reach a settlement, the court will decide on who gets custody of the children.

Q: How does the court decide who gets custody of the children?

The court will consider many factors but the two main factors will be the best interests of the children, which can be hard to decide in some cases and the other is who is the primary caretaker of the children. The court may also consider the children’s preference if they are old enough.

Q: What is the meaning of “primary caretaker”?

The courts tend to favor the parent who demonstrates that he or she has been the primary caretaker of the child during the marriage. The bond between the child and the primary caretaker is a key factor. For children, this bond is important for successful mental and emotional development and growth. To determine who is the primary caretaker, the court will consider the role of both parents in the day to day and regular activities associated with the child including dressing, grooming and bathing, planning and preparation of meals, buying clothes and laundry responsibility, medical care arrangements, encouraging the child to participate in extracurricular activities, teaching the child to read, write and count.

Q: Can an unmarried father get custody?

An unmarried father will generally not be given custody of the children. However if the unmarried father can prove that the mother is unfit or incapable of taking parental responsibilities, the court may award physical custody to the unmarried father, especially if the unmarried father is the primary caretaker of the child. If the court grants physical custody to the mother, it will generally give some legal custody to the father enabling him to take decisions about the welfare of the child such as education, medical care and religious ceremonies. Unmarried fathers can petition the court for custody and visitation rights.

Q: Is it possible for a third party to get custody of the child?

Yes. Under certain circumstances persons other than the parents can apply for and get custody of the child. Persons other than the parents who can apply for custody include grandparents, uncles, aunts and other close relatives. Different states refer to third party custody by different terms.

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