Child custody laws


Child custody laws are federal and state laws that govern a parent's legal authority to make decisions affecting a child (legal custody) and to maintain physical control over the child (physical custody). Child custody laws also pertain to the visitation rights of the non-custodial parent.


Child custody laws exist to provide a legal structure for relationships between children and their divorced parents. Ideally, divorced parents should work together to have an amicable relationship and shared custody, but bitterness between divorced spouses and tendencies to involve children in marital and divorce disputes require child custody laws. Child custody laws help to define the family situation in terms of the best interests of the child or children involved in the divorce. Child custody laws can also be applied in cases when unmarried parents claim custody based on a biological relationship, when grandparents dispute the competence of the child's parents, and when same-sex couples with adopted children separate. In some cases, custody may be granted to an individual or individuals not related (e.g., foster parents).


In the United States, responsibilities for a child's care and decision-making related to that care are governed by federal and state laws. In general, custody laws and custody decisions favor continued and frequent contact between the child and both parents, as well as an ongoing role for both parents in the raising of their children. However, custody decisions are strongly influenced by the circumstances of each individual case, the welfare of the involved child or children, and the perceived effect of each parent on the child.

In almost all custody cases, courts consider a value called the "best interests of the child" as the highest priority when rendering a custody decision. The best interests of a child are determined by considering a number of factors, including the following:

  • child's age, sex, and mental/physical health
  • mental and physical health of both parents
  • child's established lifestyle (home, school, church, etc.)
  • lifestyle of both parents, including any history of child abuse
  • emotional bonds between each parent and child, and the ability of each parent to provide emotional support and guidance
  • ability of each parent to provide physical necessities (e.g., food, home, clothing, healthcare)
  • impact of change on the child
  • ability and willingness of each parent to encourage a healthy relationship and communication between the child and the other parent
  • child's preferences

Most courts use the above factors to determine which parent can provide the child with a stable home environment and continuity of lifestyle.

Child custody laws address several different types of parenting situations and custody circumstances. For the purposes of custody, legal definitions of parenthood are as follows:

  • Biological parents: The mother and father responsible for conception and birth of the child.
  • Stepparent: A non-biological parent who marries or cohabitates with a biological parent.
  • Stepchild: A non-biological child brought into the family by marriage or cohabitation with the biological parent.
  • Custodial parent: The parent awarded primary custody by a court during divorce proceedings.
  • Non-custodial parent: The parent awarded part-time custody or visitation rights by a court during divorce proceedings.

Custody decisions involve physical and legal custody. Physical custody refers to the responsibility of taking care of the children (food, clothing, housing, etc.). Legal custody refers to the responsibility for decisions that affect the child's interests (medical, educational, and religious decisions, etc.). In 20 states, custody is divided into physical custody and legal custody; in the remaining states, physical and legal custody are not considered separately, and the term "custody" refers to both responsibilities. In states that do not distinguish between physical and legal custody, the term "custody" implies both types of responsibilities. Custody decisions by a court of law designate joint custody between two parents or primary custody for one parent (the custodial parent) and visitation rights for the non-custodial parent. Custody decisions are described as follows:

  • Joint physical custody: Children split their time between parents, spending a substantial amount of time with each parent.
  • Joint legal custody: Parents share in decision-making regarding medical, educational, and religious issues involving the children.
  • Joint legal and physical custody: Parents share both time and decision-making responsibilities.
  • Primary (sole) custody: One parent is designated the primary physical and legal custodian of the child or children, and the other parent is granted visitation rights.

Courts in every state are willing to order joint legal custody; however, about half the states are reluctant to order joint physical custody unless both parents agree to it, the child's lifestyle is not substantially disrupted (e.g., parents live within the same school district), and parents appear to be able to effectively and amicably cooperate with each other regarding their children. Two states (New Mexico and New Hampshire) require joint custody to be awarded, except when the children's best interests or a parent's health or safety are compromised.

Primary or sole custody is usually awarded when parents live a significant distance from one another, when one parent can provide clear benefits for the child over the other parent, or when one parent is deemed unfit to care for the child. In some cases, neither parent is judged fit to retain custody, usually due to substance abuse problems, mental health issues, or prolonged absence or incarceration. In such cases, an individual or individuals other than the parents are granted custody or given a temporary guardianship or foster care arrangement by a court. In general, courts would prefer that a child remain with family members than be placed in foster care.

Common problems

Unfortunately, children are often involved in divorce and custody battles and, as a result, may suffer from psychological and emotional damage that will require counseling and therapy. In some cases, a child has the legal right to choose which parent he/she wants to live with. However, placing the responsibility of making such a decision on the child can cause internal conflict and emotional stress related to feeling that they have to choose one parent over the other. Parents should make every effort to keep bitter feelings between themselves and not involve children in their divorce conflict. Having the child attend regular therapy or counseling sessions can help the child's adjustment to the divorce and changes in the living situation. Group therapy with other children in similar circumstances can be especially helpful.

Although child custody laws were established to protect the best interests of the child, final custody decisions are not always best for the child. In some cases, the parent with the best legal representation, not necessarily the parent who will provide the best care, wins custody. Parents may misrepresent their ability to properly care for children or provide false information about the other parent in order to win custody. An independent custody evaluator, usually appointed by the court, can help by conducting psychological evaluations of both parents and children to determine the custody arrangement that will be in the best interests of the children.

Parental concerns

In the early 2000s one parent often lives out of state for a variety of reasons, including employment, extended family relationships, and standard of living. All states and the District of Columbia follow the Uniform Child Custody Jurisdiction Act, which sets standards for when a court can determine custody and when a court must defer to an existing determination from another state. In general, a state court can decide custody about a child if the state is the child's home state; the child has significant connections with individuals (grandparents, doctors, teachers) in the state concerning the child's care, protection, and personal relationships; the child is in the state and has been either abandoned or is in danger of being abused or neglected if sent back to the other state; or no other state can meet one of the above three tests; or a state can meet at least one of the tests but has declined to make a custody decision. Parents who wrongfully remove or retain a child in order to create a home state or significant connections will usually be denied custody. In cases where more than one state meets the above standards, the law requires that only one state award custody. The Uniform Child Custody Jurisdiction Act has helped establish consistency in the treatment of custody decisions and helped solve problems created by kidnapping or disagreements over custody between parents living in different states.

Divorce and custody battles can create stress and worries for parents. In making custody decisions, courts look for responsible parents who are actively involved in the children's lives. Liberal, unrestricted visitation for the non-custodial parent is often based on the relationship with children and the degree of involvement in the children's everyday activities.

During the twentieth century, custody laws often mandated that custody be automatically given to mothers, especially for younger children. In the early 2000s, in most states, this ruling has been rejected or revised, and no state as of 2004 required that a child be awarded to the mother without regard for the fitness of both parents as primary caregivers. Fathers who desire physical custody should not assume that gender stereotypes will result in a mother automatically being given custody. As of 2004, when both mother and father often work full-time, parents enter a custody case as equals with regard to physical custody. Parents who present themselves as flexible and willing to assume physical custody are more likely to be granted custody.

Parents in same-sex relationships may have concerns regarding custody issues due to their sexual orientation. However, in a few states, including Alaska, California, New Jersey, New Mexico, Pennsylvania, and the District of Columbia, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody or visitation rights. However, gay and lesbian parents may still be denied custody or visitation because many judges may be motivated by personal or community prejudices. Stepparents may face a similar situation, since stepparents, unless they legally adopt a stepchild, have no legal rights with regard to custody or visitation. In cases in which a stepparent may provide a more stable environment for a child than the biological parents, judges may still favor biological parents due to personal and societal beliefs about what constitutes a "normal" family.



Ahrons, C. We're Still Family: What Grown Children Have to Say about their Parents' Divorce. New York: Harper Collins, 2004.

Boland, M. L. Your Right to Child Custody, Visitation, and Support. Naperville, IL: Sphinx Publishing, 2000.

Watnik, W. Child Custody Made Simple. Claremont, CA: Single Parent Press, 2003.


Child Custody Organization. Available online at (accessed December 20, 2004).

"Divorce and Child Custody." Nolo Law for All. Available online at (accessed December 20, 2004).

Father's Custody Center. Available online at (accessed December 20, 2004).

Jennifer E. Sisk, M.A.

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