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Who Gets Custody of a Child in Divorce?

Who Gets Custody of a Child in Divorce

Who gets custody of a child in divorce?” this one is the biggest question that is asked in the court. Yes, this answer is complicated and a crucial one. Many factors have to keep in mind while answering this question. Guidelines and considerations will play an important role when this case is decided.

Who gets Custody of a Child in Divorce?

It is the custody arrangement that decides who will make the final decisions, either the court or the parents. Custody considerations are one of the complicated processes, after a legal separation. Generally, the court gives priority to the child’s interest first. 

The parents as the Decision-Maker

In many cases, the court gives the authority to the parents to make the decision.  Most of the time, the visitation agreement comes as a result of informal settlement decision. With both parents’ consideration, one parent can have the Custody of the child, and another parent can get the regular visitation.

The Court as the Decision-Maker

If the parents cannot decide who should get the Custody of their child, then this decision is taken by the court. Usually, a family court judge will help to get the case, though it is not an easy prediction “who will get the custody,” but it is an essential and inevitable one.

Is it Mother or Father – who should get the Custody?

Many states have said that children whose age is five or under five should be awarded their Custody to their biological mother. Why is it so? Because at this stage, they need their mental growth, and from their mother, they can learn many things. And their father can get the visitation rights at this time.

However, when the child enters their teenage, the court will give a chance to the child to say something about his Custody, “with whom he wants to stay.”Many divorced families want that mother should get custody right while the father will have regular visitation rights.

There is an assumption in most of the case that after divorce, the mother should always get the custody case which means the child should stay with their mother. But no court should state the custody preference to the mother over the father. 

They should judge first from both the sides, i.e., from the parent’s side and also from the child’s interest. Sometimes children are attached to their father, and they feel likely to stay with their father.

There are some factors that are considered in the court while making this custody determination. But both parents need to show their parenting skills though most parents give priority to their child’s interest. When the parents focus on the joint Custody or sole Custody, you need to know the judge’s decision along with the regular visitation.

Who is the Primary Caregiver?

In the child custody case, every court focus on one core factor in which parent should get the primary caregiver of the child. This term is known as “Primary Caregiver.” In this term, the court decides who can take care of the child both financially and mentally.

The court will determine to the primary caregiver by judging who is more able to accept the parental responsibilities and who is more caring to the child, and most importantly, the court will give priority to the child’s needs first.

The court also focuses on some factors while giving Custody to the parents. They are:

  • Financial ability of the parents.
  • The mental and physical condition of the parents.
  • Who is the child’s comfort zone, father, or mother?
  • For the teenage child, the court will ask for the child’s interest.
  • The judge has the right to decide who is the best for the child; father or mother.
  • The court will notice if the child is being used for the property issue over their divorce case, then the judge will make the necessary decision for the custody case.

Here are also factors which are focused –

Unmarried parents and the Custody Decision

If the parents are not married, then what would be the decision for child custody? Well!!! Most of the court allows the mother to have the children, and in this time, the court will take time to get all the examination of the biological father. 

In contrast,  many courts prefer that the biological father sign the affidavit letter so that it should not be an issue in further from both sides. Paternity settlement is an excellent idea for the child’s life so that no complication can arise.

Usually, the unwed father cannot win the custody case when the court finds out that the unmarried mother is a good parent.

Can a Non-Parent get the Custody?

This term is related to the adoption case. A parent can take the responsibility of a child who is not their birth child. However, parents need to provide some strong evidence like their financial situation right now and psychological mentality with the other child.

These evidence are significant to get custody of a child. A non-parent can get a written petition for child custody. The court may apply the petition if it includes:

  • If one of the legal parents is dead or decreased.
  • If the biological parents are not married to each other.
  • If the legal separation is on a pending proceeding.

These steps are applied when non-parent will go for the child custody case.


So, while going through this article, it can be said who gets Custody of a child in divorce with many terms and factors. It is not an easy case for the court, as they should have to follow some steps. After all, Child’s interest, parents’ ability, parent’s attention is the priority to the court while giving the final decision.