How do we decide who gets custody of the children?

Naturally, you and your spouse are the only people who can really answer this question. You know each other and your children better than any judge or attorney.

For the most part, any judge will go along with whatever decision you and your spouse make. Traditionally, custody was always given to the mother unless she was somehow judged to be unfit to care for her children. For example, psychological or behavioral problems that could harm the children. More recently, the attitude that the mother was the best custodian is changing.

Nowadays courts take into account "what's in the best interests of the children" when deciding who gets custody of the children. Usually it still ends up being the mother for practical reasons. Before you go any further it is important that you understand the various types of custody:

Sole custody - The custodial parent has both physical and legal custody of the child. This means that this parent has both possession of the child (the child lives with them) and sole authority to make all decisions concerning the child. The non-custodial parent only has visitation rights. This is the most common arrangement.

Shared or joint custody - In this arrangement both parents have legal custody of the child, that is, they both have a say in all decisions concerning the children. One parent may still have sole physical custody. Shared physical custody - Under this type of custody, each parent has exclusive physical custody for alternating periods. These periods could vary from days of the week to months of the year. This may seem like a fair arrangement, however, the courts frown on this arrangement because many psychologists believe that this is harmful to the stability of the child who no longer has a sense of where his or her "home" is.

Split Custody - In this arrangement, each parent gains custody of one or more of the children. Again, the courts tend to frown on this type of custody, because not only are the children separated from a parent, but they are also separated from their siblings. When deciding who gets custody of the children, the courts ask the following question: " who are the children more reliant upon for day-to-day care?" To help you decide, fill out the following questionnaire, answering each question with either your name or your spouse's name. This will give you an idea of who is more involved in the day-to-day lives of the children:

• Who takes your children to the doctor?
• Who takes your children to the dentist?
• Who takes the children to school/daycare?
• Who talks to the children's teachers about their schoolwork?
• Who helps with homework?
• Who prepares the children's meals?
• Who does the grocery shopping?
• Who does the dishes?
• Who reads to the children?
• Who takes the children to sports activities?
• Who takes the children to music, or art classes?
• Who takes the children to church?
• If you and your spouse have different religions, what religion do your children have?
• Who is more likely to allow the children frequent contact with the other parent?
• In your opinion, in which home will your child receive better ethical and moral guidance?
• In your opinion, in which home will your child receive more love and affection? (consider all relatives and close relations)
• In your opinion, is which home will your child receive more educational opportunities?
• Who disciplines your children?
• If your children are of sufficient understanding, do you feel that they have a preference regarding whom they want to live with? If so, who?

The State Bar does not certify any lawyer as a specialist or expert. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.