What is custody?

Custody is a parent’s legal right to control his or her child’s upbringing. A parent who does not have custody will still likely be entitled to visitation, the ability to spend time with the child(ren). Both parents have a legal right to ask for custody and visitation in a divorce proceeding.

What is the difference between legal custody and physical custody? Custody has two parts: legal and physical.

Legal custody: The person who has the right to make major decisions about the child. This includes where your child goes to school, what kind of religious training a child receives, whether the child gets surgery.

Physical custody: The person with whom the child lives on a day-to-day basis. A parent with primary physical custody is sometimes called the “custodial parent” or the child’s “primary caretaker.”

How will a judge decide custody?  When determining custody and visitation, a judge will consider what is in the best interests of the child(ren). Some factors a judge may consider include:

  • who has been the child’s primary caretaker
  • the quality of each parent’s home environment
  • how “fit” the judge thinks each parent is (stable home and lifestyle, good judgment, has a job, good mental and physical health)
  • which parent the child is living with now, and for how long
  • each parent’s ability to provide emotional and intellectual support for the child
  • which parent allows the other parent into the child’s life (does not try to cut out the other parent)
  • if the child is old enough, which parent the child wants to live with
  • whether your child would be separated from any siblings
  • whether either parent has been abusive

A judge must consider whether there has been domestic violence.

For more detailed answers to frequently asked questions on custody, visit CourtHelp.