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Domestic Relations Law: Determining Child Custody

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Domestic Relations Law: Determining Child Custody

Custody of a minor child is defined as the rights and obligations related to giving care, providing protection, and exercising control over a child.[1] Because the different facets of custody are often at issue at the same time, custody disputes are frequently emotionally charged.

Reaching a determination on an agreement to cover custody is challenging, but numerous resources exist to help guide courts and parents.

We will look at two types of custody: legal and physical custody. We will also discuss the “child’s best interests” standard, which is the foundation for courts reaching custody decisions. Finally, we will discuss how custody orders can be modified and what a parent must demonstrate to achieve modification.

Child’s Best Interests Standard

Custody decisions usually start with the competing rights of the parents and, in cases where there are two parents vying for custody, must determine the ability of the custodial and non-custodial parents to control the child’s activities and of the noncustodial parent’s ability to have a meaningful relationship with the child. Still, the underlying basis for any decision must be “the best interests of the child.” 

The best interests of the child standard is a fact-based test and different states use different factors to reach this determination. State statutes require courts to determine what is in the best interests of a child by factors including:

·         The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

·         The age and physical and mental condition of each parent;

·         The lifestyle of each parent and his or her ability to provide the basic necessities of life;

·         The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life and the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

·         The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

·         The role that each parent has played and will play in the future in the upbringing and care of the child;

·         The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.[2]

Child Custody Overview

There are two kinds of custody: physical custody and legal custody. For each, a parent may be awarded sole custody or two parents may be awarded joint custody. A parent with sole custody means that he or she will exercise exclusive rights concerning the child. If parents have a joint custody arrangement, both parents share equal rights concerning the child. To determine whether sole or joint custody should be awarded, the “child’s best interests” standard is used.  

Physical custody

Physical custody is the actual possession and control of a child and gives the parent the right to have the child live with him or her. Sole physical custody means that a child resides only with one parent for significant periods of time. If a child resides with two parents for significant periods of time, these parents have joint physical custody of the child. Determining whether a sole or joint physical custody arrangement should be created is a fact-based determination.

Traditionally, courts believed that a child, especially a young child, should only call one place home. With the advent of new research and studies, joint physical custody arrangements have become more common for a number of reasons. First, psychological studies have demonstrated that the devastating effects of divorce on children can be reduced if both parents remain active in a child’s upbringing.[3] The psychologists leading these studies argue that by maintaining relationships and living with both parents, children can better handle the upheavals caused by divorce.[4] Second, as the number of households with both parents in the workforce have increased, there is an increased need for both parents to cooperate with one another and help raise the child. By awarding joint physical custody, each parent’s work schedules are considered so that an arrangement is reached that will allow for both to best take care of the child according to their time availabilities.

Legal custody

Legal custody is the parents’ ability to make legal decisions on matters affecting the child. A few examples of these legal decisions include determinations on a child’s medical care, education, and religious upbringing. Unless circumstances demonstrate that one parent should not be involved in legal decision-making, courts typically award joint legal custody. Under joint legal custody, parents share in the decision-making process and parents have equal rights to the child’s records. The benefit of such an arrangement is that both parents remain involved in making decisions that will impact their children’s lives. If a dispute arises over a legal decision, a court can settle the dispute.

 Courts can (and often do) award joint legal custody even while awarding sole physical custody to one parent.[5] In one New York case, both the mother and father of their two sons had joint legal custody of both children. However, the court awarded sole physical custody of each child to a different parent, so that one son lived with his mother and the other son lived with his father. On appeal, the appeals court okayed this arrangement, as the best interests of different children might be attained by giving physical custody to separate parents. Each son had a better relationship with one parent than the other. Thus, the sole physical custody award for each child was justified.

Parents not granted custody are usually granted visitation with the child. Moreover, visitation rights may vest in non-parent relatives of the child as well. Those topics are covered in our presentation on visitation.

Modification of Child Custody

Though it may appear as though a physical or legal child custody arrangement is a final judgment, neither of these two orders are set in stone when initially decided. Custody orders can be modified if there is a material or substantial change in circumstances that affects the child’s health or well-being.[6]

State statutes typically require a certain amount of time to elapse between the prior custody order and a request for modification. Despite this, if the child’s mental, emotional, or physical health is in harm’s way, a child custody order can be modified immediately.

Because extreme changes in custody can be a traumatic experience for children and can alter their way of life, courts are very reluctant to change a custody order absent a material or substantial change in circumstances that affects the child’s health or well-being. The party seeking the modification of the custody order must demonstrate some of the following elements to prove a material or substantial change in circumstances:

·         Custodial parent’s immoral or criminal propensities;

·         Custodial parent’s mental illness or physical illness impacting his or her ability to raise the child;

·         Custodial parent’s abusive behavior towards the child;

·         Instability in the child’s environment impacting the child’s welfare;

·         Threat that the noncustodial parent’s relationship with the child will be destroyed or abridged;

·         Change in child’s preference in determining whether to modify the custody arrangement.

If the parent seeking the modification can show that a number of these elements exist, then it is more likely that a court will modify a child custody order based on a material or substantial change in circumstances.

Determining child custody is an emotional process for both parents and children. Despite the emotional uncertainty that the parties involved will experience, family law jurisprudence functions in a way that provides protocols and standards so that courts can make uniform decisions and minimize doubts and uncertainty.


[1] Suzanne Reynolds, Back To The Future: An Empirical Study of Child Custody Outcomes, 85 N.C.L. Rev. 1629, (2007).

[2] “Best Interests of the Child,” Child Custody Project, http://childcustodyproject.org/essays/best-interests-of-the-child/.

[3] Judith S. Wallerstein & Joan Berlin Kelly, Surviving the Breakup: How Children and Parents Cope with Divorce (1980).

[4] Robert Emery, “Is joint physical custody best—or worst—for children?”, Psychology Today, https://www.psychologytoday.com/blog/divorced-children/200905/joint-physical-custody.

[5] Matter of Pecore v. Pecore, 824 N.Y.S.2d 690, (2006).

[6] Quinn v. Johnson, 247 N.J. Super. 572, (1991).