How Child Custody Decisions Are Made

Lauri Mckenna

How Child Custody Decisions Are Made

Family Law
| 5 min
6 Min

In most cases, divorce or separation significantly changes family circumstances, especially where children are involved. For most divorcing or separating couples, child custody issues are emotional and complicated. 

Individual parents want to know whether the child will live with them or not and whether they will make important decisions regarding the child's life. Essentially, they want to understand the child custody process, including how decisions are made.

Similar to other divorce features, including property division, alimony, and child support, child custody issues are mostly resolved either by an agreement between the couple or by the family court. While most couples can agree on child custody, some cannot. In such cases, child custody decisions are made by the court.

By the Divorcing Couple

Naturally, parents want what's best for their child. However, for divorcing parents, this can sometimes mean less time with their child or less influence over how they are being raised. Understandably, no parent wants to have a reduced role in the life of their child, which is often how child custody disputes end up in the courtroom. 

However, some parents understand that the court’s decisions can be unpredictable hence agree to resolve the dispute amongst themselves. Mostly, divorcing parents agrees on child custody either through informal negotiations or through alternative dispute resolution channels, including mediation. In both cases, the decisions are usually made with the help and guidance of their respective attorneys.

Besides avoiding the unpredictability of court decisions, an agreement between the divorcing couple shields children from custody disputes and related hostilities. In essence, disagreements are private and only between the parents, unlike in a court case where the children may be required to appear or decide which parent they want to stay with.

By the Court

Due to the emotional aspect of child custody and visitation disputes, some divorcing couples cannot agree. Each party feels entitled to their parental rights and responsibilities and is unwilling to have them reduced or altered in any way. In most cases, both parents have strong arguments, hence the need to have a court evaluate those arguments and make a decision. 

Unlike when divorcing parents make the child custody decisions, court decisions are unpredictable and involve many considerations. To ensure fairness, the court’s decision is based on the “best interest of the child” standard. However, many divorcing parents have criticized the standard for vagueness as it does not clearly define what is best for a child. 

Generally, the 'best interest of the child' standard is based on a combination of factors that the judge thinks will promote the child's overall wellbeing, including his/her physical and emotional wellbeing.  

Besides the standard, other factors that can influence the court's decision in custody disputes include how the child relates to the individual parent and the child's preference. The court's decision may also be influenced by the parent's wishes, their respective work schedules, and their physical and mental health. Other factors that are taken into consideration include the child's age, the number of children involved, and the distance between the divorcing parents’ homes.

Types of Child Custody

Child custody can either be physical or legal. Physical custody refers to which parent the child will live with. Legal custody refers to which parent has the authority to make important life decisions on behalf of the child, including education, religion, healthcare, and overall upbringing decisions. 

Whether the custody decision is made in court or is due to an agreement between the parents, different situations may require different custody arrangements. For instance, in some cases, one parent may have physical custody while both share legal custody and vice versa. However, in most cases divorcing parents get to have joint physical and legal custody.


Change is hard on children, especially if it is as significant as a parent's divorce or separation. Therefore, child custody disputes must be resolved in a manner that won't further destabilize the child. How child custody decisions are made plays a huge role in how divorce or separation affects a child. While the divorcing parents should agree amongst themselves without going to court, it is not always possible. Whichever way custody decisions are made, they should always be made for the best interest of the child.

6 Min
Oct 29, 2019
Lauri Mckenna