Child Custody: What To Know Before Starting a Case

Child custody is the legal right and responsibility to care for a child. Some places use a different term, such as parenting arrangements or, in Texas, conservatorship.

Married parents share custody of their children. While the same can be true for unmarried parents, the father must typically get a court order to secure their rights.

When parents divorce or separate, they need child custody arrangements to effectively manage co-parenting. They can negotiate a custody agreement or go to trial to sort out parental custody.

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Child custody in family law

Child custody laws vary by location.

Some locations have one set of laws for all family matters, while others have separate sets of laws for divorce and child custody. The divorce laws cover child custody for divorcing parents, and the custody-specific laws cover child custody for unmarried parents.

While each jurisdiction does things a little differently, they all base custody decisions on the best interest of the child. This means that the child's well-being takes priority over everything else, such as a parent's wishes.

Child custody laws generally cover:

Physical and legal custody

Child custody can be split into two categories: physical custody and legal custody.

Physical custody gives a parent the right and responsibility to provide the child's home and care for the child. Other terms for physical custody include parenting time and residential responsibility.

Legal custody gives a parent the right and responsibility to make decisions for their child, like which school they attend. Other terms for legal custody include decision-making responsibility and parental responsibility.

Each type of custody can be shared by the parents or held by just one parent.

Sole custody

Sole physical custody (sometimes called primary physical custody) places the child in one parent's home for the vast majority of the time. Typically, the noncustodial parent gets visitation. Visits may occur under the supervision of a third party if necessary to protect the child.

The court may award sole physical custody if the other parent:

  • Is unfit
  • Lives a significant distance away
  • Is incarcerated or incapacitated
  • Cannot provide a safe and stable home for the child

With sole legal custody, only one parent has the right to make major decisions on the child's behalf.

The court may award sole legal custody if the other parent:

  • Is unfit
  • Has not been involved in the child's life
  • Cannot work with the other parent in good faith

Joint custody

Many jurisdictions now prefer for parents to share custody when they're both fit (and haven't agreed to a sole custody arrangement).

Joint physical custody (sometimes called shared physical custody) places the child in each parent's home for a significant amount of time. Every location has a different definition of joint physical custody. Some define it as each parent having at least 40 percent of annual parenting time.

With joint legal custody (sometimes called shared legal custody), parents have to make major child-related decisions together. Sometimes, parents agree that one of them will make certain kinds of decisions independently, e.g. education decisions.

Joint custody only works if parents are able to collaborate. At a minimum, they must communicate effectively.

Split custody

Parents with multiple children may split custody, meaning each parent becomes legally responsible for at least one of the children they share. Though rare, it may come into play if there are significant age gaps between the children.

Split physical custody places at least one child with each parent for the majority of the year. With split legal custody, each parent makes decisions for at least one of their children.

How to get custody of a child

Custody is determined by the parents' agreement or by a judge.

Agreeing is the recommended way to decide child custody. Many parents are able to agree through alternative dispute resolution methods like mediation. They can get a court order if a judge approves the agreement's terms.

If parents cannot agree, they'll go to trial. At trial, parents or their lawyers present arguments and evidence to a judge, who makes a decision based on what they hear. Trial often requires months of preparation and is expensive when you factor in lawyer fees.

Some things a judge may consider when deciding custody or reviewing an agreement are:

  • Who has provided most of the child's care
  • Who can provide a safe and stable living environment for the child
  • Each parent's relationship with the child, behavioral history, income and availability
  • The child's relationship with their siblings and extended family members

If a judge is deciding custody for you, hire a lawyer (or, if you can't afford one, check if you qualify for legal aid). Familiarize yourself with the laws and procedures in your area, and gather the best evidence you can.

There's no guarantee that the court will side with you. However, unless you're a threat to your child's well-being, it's rare for a court to not grant a parent any custodial rights.

Filing court papers for custody

The process for filing court papers for custody varies by location.

Generally, you'll fill out a petition for custody and hand it in at the family court nearest your child's residence. If you're divorcing, you'll ask for custody in your divorce forms. The paperwork may differ if you have an agreement.

Courts will often ask for additional documents. Typically, you must provide a financial statement to help the court determine a child support amount. You may also have to propose a parenting plan.

After you file your forms, the other parent must receive copies through a process called service. Your case officially begins after you file proof of service and the other parent responds or fails to respond within the time frame given by the court.

The easiest way to manage child custody

It may seem impossible to juggle all the different aspects of child custody.

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Long distance schedules

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Summer break

Parenting provisions


How to make a schedule

Factors to consider

Parenting plans:

Making a parenting plan

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Guides by location:

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Scheduling guidelines

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Age guidelines:

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3 to 5 years

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13 to 18 years


Joint physical custody

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Joint legal custody

Sole legal custody

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