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Defining Child Custody- Module 1 of 5

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Module 1: Defining Child Custody


One New York attorney and certified divorce mediator who pens a weekly column on family law issues wrote, “Facts trump emotions when dealing with custody issues.”[1] A custody battle can rage on for months and it is emotionally draining for former spouses and for children who are at the center of such a dispute. 

Child custody is defined as the right to the care and control of a child, including the ability to make decisions regarding the child’s upbringing.[2] When considering a spousal divorce or separation, one of the main concerns is how it will affect any children involved. Among the principal questions that emerge are: “How will the parenting change?” and “Who will get what amount of time with the child?”

Ideally, the child’s biological parents will work together to make decisions about the child, such as the child’s residence, healthcare, education, and religious upbringing.[3] This isn’t always possible, however. Due to a divorce’s often contentious nature, childcare issues become difficult and burdensome.   

In this module, we’ll learn the basic tenets of child custody law. We will begin by examining the difference between legal and physical custody. Next, we’ll explore the history of child custody in the United States, learning about different approaches. Finally, we will explain the “best interests of the child” standard and how courts are currently implementing it to reach a child custody determination.   

Historical Approaches to Child Custody

Approaches to child custody have toggled and swayed, with preference once being given to the father and then swinging back to the mother, before approaching something of an equilibrium in recent years. In the eighteenth century, the rule of paternal preference prevailed in child custody cases: the father was typically entitled to custody.

Beginning in the mid-to-late nineteenth century, women’s rights organizations began to advocate for custody rights and custody law was gradually changed to the point of maternal preference rather than the previous paternal one. This maternal preference was called the “tender years doctrine,” and is predicated on the idea that the biological mother of a young child is typically the most effective caretaker to a child.[4] The doctrine established a presumption of material custody what could be overcome only by a finding that she was unfit. 

This rule placed the burden of proof on the father to show that the mother is unfit and that it’s in the child’s best interest for him to have custody. This maternal preference for custody persisted until the 1980s, when the constitutionality of maternal preference was questioned in the Alabama case, Devine v. Devine. There, the Alabama Supreme Court held that the tender years doctrine is an unconstitutional gender classification because preference is given to the child’s mother. It violates the Equal Protection Clause because it discriminates against a child’s father.[5]      

In a few states, the primary caretaker presumption replaced the tender years doctrine. The primary caretaker presumption favors a custody award to the parent who is the primary caretaker of the child.[6] Although the primary caretaker presumption was not widely adopted, the primary caretaker status is a relevant factor in custody decisions in all states.

Another formerly influential factor in custody decision-making was who was at fault in the divorce. Prior to the 1970s, divorce was primarily fault-based  and custody was usually awarded to the innocent spouse.[7]

In 1970, the Uniform Marriage and Divorce Act rejected fault-based notions in custody cases, opting instead for the best interests of the child standard.[8] Due In part to the decline of the tender years doctrine, the best interests of the child standard has become the prevalent standard today.

Legal Custody vs. Physical Custody

Child custody is broken down into two types: legal custody and physical custody. Legal custody refers to the parent responsible for making major decisions for the child, such as religious upbringing, health, welfare and education. [9] Any important decision in a child’s life will fall on the parent that has legal custody, which may be vested in one or both parents. During a marriage, both parents make these decisions together. When a child’s parents divorce, it must be decided who will continue to make those decisions for the child. When possible, the courts prefer to keep legal custody with both parents, as that is the most like the arrangement in place before the marriage broke down.[10]

Physical custody refers to the child’s living arrangements and the rights of the parent with whom the child resides.[11] Physical custody can also be granted to both parents or just one. If the child lives only with one parent for significant periods of time, that parent has “primary physical custody.” If the child lives with both parents for significant periods, they may have joint physical custody of the child.[12]

There are many ways that legal custody and physical custody can be broken down and it’s not unusual for legal and physical custody to be set up differently from each other.[13] For example, a parent can have sole legal custody but share physical custody. It is virtually axiomatic, however, that a parent with sole custody in one department will need to at least share custody in the other.

Most modern custody arrangements give primary physical custody to one parent, referred to as the custodial parent, and grant visitation rights or shared legal custody to the non-custodial parent. In these cases, the non-custodial parent will have exclusive time with the child, called visitation rights, for a set amount of time, such as every other weekend and alternating major holidays, and/or, for example, a number of weeks during summer vacations.[14]

“Best Interests of the Child” Standard and Child Custody

The modern prevailing principle in child custody decision-making is “the best interests of the child” standard. Prior approaches were too subjective and open to moral judgments of individual judges, which led courts to conclude that a new standard was needed that was more objective and promoted consistency and predictability in custody outcomes.

To remove subjectivity, the National Conference of Commissioners on Uniform State Laws drafted the “Best Interest of Child” section in the Uniform Marriage and Divorce Act, adopted in 1970.[15] The Act was created in an attempt to make marriage and divorce laws more uniform and it has had an enormous impact on marriage and divorce laws in all states, with most states adopting the Act’s Section 402 “Best Interest of Child” section.[16]  

The best interests of the child determination is made after considering several factors related to the child’s circumstances as well as his caregiver’s circumstances. The child’s ultimate safety and well-being are the paramount concerns when a court balances the factors and reaches a decision.

Section 402 of the Uniform Marriage and Divorce Act provides the following:

“The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school, and community; and

(5) the mental and physical health of all people involved.

The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”[17]

Regarding the second factor, the wishes of the child: while relevant, most courts do not consider the child’s preference to be dispositive.[18] In general, the older the child, the more weight her preference will be given in making this determination. The preference of a young child, which generally means under age eight, often will not be considered or be given much weight, but the preferences of older children- those children generally over age twelve- are often given great weight in determining child custody.[19]

A court will determine a child’s desires by interviewing her. In Texas, for example, Section 153.009 of the Texas Family Code provides that during the interview in a judge’s chambers, the judge will ask several questions regarding the child’s relationship with her parents.[20] During the interview, the judge will focus on the child’s responses, her ability to express her views, the maturity that she demonstrates when responding to questions regarding the relationship with each of the parents. A record of the interview becomes part of the record in the case.

More than 20 states and the District of Columbia provide additional factors that a court must consider when determining the best interest of the child.[21] These statutes either include the factors set forth in the Uniform Marriage and Divorce Act or

build upon them. In Connecticut, for example, the statute provides that a Connecticut court will have to consider the Uniform Marriage and Divorce Act Section 402 factors, but also shall consider additional factors, including:[22]

·       the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;

·       any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;

·       the ability of each parent to be actively involved in the life of the child; and

·       the child's cultural background.

Section 402’s final sentence, that “the court shall not consider conduct…that does not affect…the child,” is meant to reject the practice of awarding child custody to the spouse who was not at fault for the breakdown of the marriage and remove all notions of fault in custody decisions.[23] It is now clear that unless a parent can prove that the other parent’s behavior affects the relationship with the child, then evidence of any such behavior is irrelevant. 

Circumstances of the Parents that are Relevant to Determining Custody

There are several examples of criteria and behaviors that have developed through application of these rules law that must be considered when applying the best interest of the child standard. While it would be impossible to list all possible circumstances that would be relevant, following is a discussion of how some specific circumstances are treated.

The first category are circumstances that are inherent or philosophical, such as race and religion.  


In Palmore v. Sidoti, the Supreme Court concluded that race couldn’t serve as the decisive factor in making custody decision.[24] Here, a court took away custody of a mother’s child because she married an African-American man. The Court found that although race can be a factor in determining the best interest of the child, it couldn’t be the major determining factor, as that would be a violation of the Equal Protection Clause.


Despite the First Amendment’s guarantees of freedom of religion, religion can be, and often is, relevant in determining custody. While exposing a child to multiple religions is not generally considered harmful,[25] many courts indicate a preference to keep a child’s religious life consistent with how the child was brought up before the divorce.[26]

Also, under the Free Exercise Clause, a court may not interfere with a parent’s right to practice religion and so cannot disqualify a parent merely due to religious observances. There is a limitation however, that the courts may consider the effect a parent’s religion has on the child.[27] When parents argue over religion, the court may weigh the religion or religious ritual’s effect on the child’s wellbeing.

In Sagar v. Sagar, for example, the parents argued about whether to subject the child to a religious ritual. While the court could not constitutionally pass judgment on the ritual itself or determine whether it was a good idea, the court observed a sort of stalemate: the father (the ritual’s proponent) could not demonstrate a compelling reason that the ritual needed to be performed, but the mother could not show that the ritual would bring the child harm. Therefore, the court awarded joint custody but left the decision as to the ritual to the child, which she would be able to make when she reached sufficient age.[28]

The second category are fitness circumstances. These include:

Sexual conduct

Custody will be denied or altered only if the parent’s sexual conduct has, or will have, an adverse impact on the child.[29]


The child’s daycare arrangements may sometimes be a factor in custody decision-making, as a court will sometimes favor custody going to the parent that can provide personal care for the child.[30]


This is not a factor in child custody decisions unless one parent is unable to provide adequately for the child.

Domestic Violence 

Every state provides that courts consider spousal abuse as a factor in a child custody decision. Typically, there is a rebuttable presumption against an award of custody to a parent who has committed domestic violence. This means that there is an assumption made by the court to not give custody to the abuser, and the abuser must demonstrate that he is not a threat to the wellbeing of the child.[31]


When one of the child’s parents is disabled, a court may focus on the effect of the disability on the child to see if an emotional and intellectual connection between parent and child can still be properly maintained despite the disability.[32]


As with other domestic relations issues, child custody determinations are almost always made by state courts, usually by specialty courts called “family courts” or with comparable names. Where the families live in multiple states or where there is a question as to which state can enforce a child custody determination, uniform rules, such as the Uniform Child Custody Jurisdiction Act, control.[33] This and similar acts are covered in later modules.

Federal courts rarely have jurisdiction over child custody cases, even when there might otherwise be federal court jurisdiction based on diversity of citizenship. Where the substance of the action concerns parent-child relations, custody disputes or adoption matters, federal courts will defer to state courts since these are thought to be matters that the state has the strongest interest in determining.  Child custody disputes can occasionally be resolved in a federal court when they involve applications of federal law, such as federal civil rights legislation or international custody disputes.[34]

In our next module, we’ll discuss the differences between sole custody and joint custody and learn about how a court awards it and determines it.


[1] Q&A Topic: Divorce and Child Custody, Prenuptial Agreements & Assisted Reproduction, Westchester Magazine, http://www.westchestermagazine.com/Sponsored-Content/Ask-the-Top-Lawyers/Topics-Divorce-and-Child-Custody-Prenuptial-Agreements-Assisted-Reproduction/

[2] Child Custody, Legal Dictionary, https://legaldictionary.net/child-custody/ 

[3] Id.

[4] Ketola v. Ketola, 636 So.2d 850, 851 (D. Fla. 1994).

[5] Devine v. Devine, 398 So. 2d 686, 695-96 (Ala. 1981).

[6] Garska v. McCoy, 278 S.E. 2d 357, 363 (1981).

[7] W. Bradford Wilcox, The Evolution of Divorce, National Affairs (2009), https://www.nationalaffairs.com/publications/detail/the-evolution-of-divorce.

[8] Unif. Marriage & Divorce Act § 402.

[9] Emily Doskow, Nolo's Essential Guide to Child Custody & Support (2017).

[10] The Different Kinds of Child Custody, NOLO, https://www.nolo.com/legal-encyclopedia/types-of-child-custody-29667.html 

[11] Suzanne Reynolds, Back To The Future: An Empirical Study Of Child Custody Outcomes, 85 N.C.L. Rev. 1629, 1641 (2007).

[12] Id. at 1641-42.

[13] Emily Doskow, Differences Between Legal and Physical Child Custody, NOLO, https://www.divorcenet.com/resources/divorce/divorce-and-children/legal-and-physical-custody-children

[14] 3 Family Law and Practice § 32.09 (2018).

[15] Unif. Marriage & Divorce Act § 402; Tom James, The History of Custody Law.

[16] Uniform Marriage and Divorce Law and Legal Definition, US Legal, https://definitions.uslegal.com/u/uniform-marriage-and-divorce-act/ 

[18] Debrina Washington, Considering the Child’s Wishes When Determining Child Custody, Live About, (June 12, 2017) https://www.liveabout.com/childs-wishes-in-determining-custody-2997134.

[19] Henry Gornbein, The Reasonable Preference of the Child in Custody Cases, Divorce Magazine, (Oct. 20, 2016) https://www.divorcemag.com/blog/the-reasonable-preference-of-the-child-in-custody-cases/.[20] Tex. Family Code Ann. § 153.009 (2005).

[21]Determining the Best Interest of the Child, Child Welfare Information Gateway, https://www.childwelfare.gov/pubPDFs/best_interest.pdf#page=2&view=Guiding%20principles%20of%20best%20interests%20determinations 

[23] Unif. Marriage & Divorce Act § 402.

[24] Palmore v. Sidoti, 466 U.S. 429, 433 (1984). 

[25] Munoz v. Munoz, 489 P.2d 1133, 1135 (1971)

[26] Neela Banerjee, Religion Joins Custody Cases, to Judges’ Unease, N.Y. Times, (Feb. 13, 2008) https://www.nytimes.com/2008/02/13/us/13custody.html

[27] Holder v. Holder, 872 N.E. 2d 1239, 1241 (Ohio Ct. App. 2007). 

[28] Sagar v. Sagar, 781 N.E. 2d 54, 59-60 (Mass. App. Ct. 2003). 

[29] Hollon v. Hollon, 784 So. 2d 943, 949-50 (Miss. 2001). 

[30] Ireland v. Smith, 547 N.W. 2d 686, 691 (Mich. 1996).

[31] Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns (Revised 2007), VAWnet (Oct. 2007), https://vawnet.org/material/child-custody-and-visitation-decisions-domestic-violence-cases-legal-trends-risk-factors.

[32] In re Marriage of Carney, 598 P.2d 36, 42 (Cal. 1979). 

[34] Chafin v. Chafin, 568 U.S. 165, 172-73 (2013).