Child Custody

Welcome to the Child Custody department of Divorce and FamilyLawService Center. Here we will define the different categories and types that fall within the general description of child custody. We will discuss the determining factors considered in child custody, the most important being the best interests of the child. We will also talk about child custody mediation, evaluation, and modification.

Child Custody Defined

Child custody falls within two categories. The first is physical custody. Physical custody is the right of a parent to spend time living with a child. Within physical custody there are four different types of child custody arrangements. By far the most common arrangement is joint custody. Joint custody means the child lives with both parents based on a court defined schedule. The second most common arrangement is sole custody. Sole custody means custody and visitation are divided between the custodial parent or primary residential parent and the non-custodial parent or the parent who has access to the child based on a visitation schedule. A third scenario for a child custody arrangement is split custody. Split custody means one biological child lives with one parent and another biological child lives with the other parent. The last form of physical custody and the least awarded is non-parental or third party custody. A step, foster, or grand parent must show that the legal parent is harmful or unfit to parent the child.

The second category is legal custody. Legal custody is the right and responsibility of a parent to make decisions for the general welfare of the child whether the parent lives with the child or not. Legal custody can either be joint, which means shared between the parents, or sole, which means only one parent makes all the decisions in regards to the child’s general welfare.

Determining Factors

It must be said that the court exists to put the best interest of the child first and foremost. When the court is considering child custody the child’s health, safety and welfare are primary. This may be determined by a parent’s ability to provide food, shelter, clothing, and medical care. The lifestyle and social life of the parent may be examined. The stability of the parent’s home, whether there has been previous abuse or neglect of the child, and whether there has been drug and/or alcohol abuse by the parent may all be scrutinized. The emotional bonds between the child and parent and how open one parent is to fostering a healthy relationship between the child and the other parent could both be instrumental in the final decision. In some states, if the child is over 12 their own preference in parents may decide child custody. Additionally, if necessary the court has the power to order emergency investigations, mental health examinations, counseling, and appoint counsel for the minor. In short, child custody issues involve emotional, personal matters and it is critical for everyone to remember that the child’s best interests are the most important aspect of the proceedings. Taking everything into consideration, while keeping the child’s best interests front and center, the court determines custody and visitation schedules for the non-custodial parent.

Mediation and Evaluation

Most often parents must attempt to come up with a child custody parenting plan on their own with the help of a court appointed mediator. If it becomes clear that an agreement between the two parents is impossible, the court may approve a child custody evaluator that conducts a child custody evaluation. This evaluator makes a confidential report that may be considered by the court. Even if the parents can come to an agreement themselves, the judge has the final say over the child custody agreement.


As the child grows, routines and needs of daily life change dramatically. By consent of both parents or by the court, anything in the child custody agreement can be changed. The parents do have to prove a substantial change in circumstances. Some examples of reasons to change the initial agreement could be issues that adversely effect the child’s stability or their safety, such as: relocation, loss of job, illness, remarriage, or abuse. If possible, these future circumstances could be envisioned in the original child custody agreement, spelling out the changes each parent would make if such instances occur.