How Does a Judge Determine Who Gets Child Custody?

How Does a Judge Determine Who Gets Child Custody?


Each state uses a “in the child’s best interest” commonality in contested custody cases. This is a rather amorphous commonality, and one that provides itself to judges’ personal beliefs about what is best for children. There are some attributes, however, that you can expect judges to think about.

The Children’s Age

Even though the “tender years” belief has been officially out of fashion for some time, many judges still consider younger children need to live with their mothers, particularly when the mother has been the principal caregiver. (obviously, a nursing baby is going to do.)

Each of the Parent’s Living Arrangement

There’s a bit of a chicken or the egg predicament surrounding the matter of where parents reside and how that impacts custody. Occasionally, the parent that stays in the family home is awarded custody of the children since it allows the children continuity and consistency in their day to day lives. From time to time, the parent with custody is granted the family home, for the same reasoning. When you are staying in your one of your friend’s guest room while you get life back together following your divorce, don’t expect to get principal custody of your children. When you genuinely want to spend a considerable amount of time with your children, be sure your living environment is a reflection of that. How close your home to your spouse’s can also be a factor in the judge’s determination. The more close you are, the more likely the judge is going to order a time-sharing plan that allows both parents to have considerable time with the children. Where their school and their social and sports activities are located can also be a factor.

Each of the Parent’s Enthusiasm to Encourage the Other’s Relationship with the Children

The judge is going to examine your history of working together—or not— with your spouse about your parenting plan. The judge may also want to know things such as whether you talk bad about your spouse in front of your children or interrupt with visitation in any way. The more accommodating parent will have an advantage in a custody dispute—and a parent that is clearly trying to estrange a child from the other parent is going to learn first-hand that courts don’t favorably on that type of hindrance.

Each of the Parent’s Relationship with the Children Prior to the Divorce

It occasionally occurs that parents that haven’t been that much involved in their children’s’ lives unexpectedly develop a powerful want to spend more time with the children after the marriage has been terminated. In a lot of cases, this want is genuine, and a judge is going to respect it, particularly when the parent has been committed to parenting throughout the separation period. But the judge is going to definitely take some time to examine a parent’s change of mind and guarantee that the custody request isn’t just being made just to win over the other parent.

The Children’s Preference

When children are old enough—typically, twelve plus—a judge might speak with them to determine their preferences concerning custody and visitation. Many states require the court to assess children’s views, but others are dissatisfied with involving the children at all. The judge also can discover the children’s preference from a custody assessor.

Consistency and Stability

As for children, judges are big on the state of things, since a lot of them think that stacking more changes on top of the already distressing transition of divorce typically is not good for children. So, if your argument is that things are working just fine, you have a one up on a spouse that is arguing for a major modification in the custody or visitation plan that’s presently in place.

Sexual Orientation

When you are in a same-sex marriage in in the states of New York, D.C., Connecticut, Iowa, Massachusetts, New Hampshire, or Vermont, or in a common law marriage or civil union in California, Nevada, Hawaii, Oregon, Illinois, New Jersey, Washington, or Rhode Island, and each of you are both legal parents of the children, your sexual orientation is not going to have an impact on the court’s determination of custody and visitation issues. The same values that are applicable to all divorcing spouses are going to apply to you. Specific other states have laws that prohibits judges from using sexual orientation solely to decline custody or restrict visitation. That does not mean you won’t face a homophobic judge, even in the above states. And in many states, courts can, and do, regard sexual orientation as a major attribute in custody and visitation decisions. It’s rather common for judges in those states to stipulate that a parent’s same-sex partner cannot be around when children visit, or the parent cannot expose the children to a “gay lifestyle.” And in a worst case scenario, parents could be disallowed contact with their children based on their sexual orientation. The same could be said for transgender parents, that might face even more discrimination than same-sex parents, in addition to a lack of knowledge in a lot of courts about the transgender familiarity.

Abuse or Desertion

Clearly, when there’s obvious evidence that either one of the parent’s has abused or deserted the children, a judge is going to restrict that parent’s interaction with the children.

Each situation is going to be different, so the judge might determine other factors in choosing custody in your case.


  1. Emily Doskow, A. (2021, February 23). The best interests of the child: Factors a judge may consider in deciding custody. Retrieved March 04, 2021, from

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