How to Get Child Custody

Understand the factors that go into getting custody of your child

By Canaan Suitt, J.D. | Last updated on May 1, 2023 Featuring practical insights from contributing attorney Jason C. Brown

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Child custody is often one of the most challenging and emotionally charged issues in family court.

“Custody disputes can arise in one of two contexts. The first is divorce, in which the parties have to make a custody determination as part of a broader dissolution of their marriage,” says Jason C. Brown, a family law attorney at Barna, Guzy & Steffen in Coon Rapids, Minnesota.

“The second is in a paternity action, when a child is born outside of a marital relationship, and the parties need the assistance of a court to determine what will be the best arrangement for the custody and the care of a child.”

Despite the difficulties, many divorcing or separating parents come to an agreement on their own and avoid custody litigation. While family court judges ultimately decide child custody issues, they tend to defer to custody arrangements parents agree on.

If parents can’t come to a custody agreement on their own, some form of alternative dispute resolution or litigation is necessary. This article will explain the different options for settling child custody disputes and when it’s a good idea to seek legal advice.

What Are the Different Types of Child Custody?

“Child custody ultimately determines what role each parent is going to play in the upbringing of a child,” says Brown. “It’s typically broken down into two types: legal custody and physical custody.”

  • Legal Custody.  A “parent’s role in key decisions that are made on behalf of a child, including religion, healthcare, and education,” says Brown.
  • Physical Custody. It “describes who is responsible for the more day-to-day care of a child,” he says.

Custody can also be sole, joint, or split:

  • Sole Custody.  One parent has full legal or full physical custody.
  • Joint Custody. This can mean either mean:
    • Joint physical custody, when the child lives part of the time with each parent
    • Joint legal custody, when both parents are involved in making important decisions about the child’s life
  • Split Custody.  Relatively rare but refers to when siblings are split between the parents’ households. For example, the mother gets the son while the father gets the daughter. Courts generally prefer to keep siblings together.

Custody or parenting agreements determine the type of custody each parent has. The best arrangement will depend on various factors, including the parents’ circumstances and, above all, the child’s best interests.

What Do Judges Consider When Deciding Custody?

To decide who should get custody of the child, judges use a legal standard known as the best interests of the child standard. This standard makes the child’s welfare, instead of the parents’ desires or preferences, the primary factor in deciding the child’s future arrangements.

A custody evaluation is rarely simple or clear-cut. However, Brown says, courts in every state generally look at the same kinds of factors:

“The court will take a look at the role each parent has played in the upbringing of the child; whether either parent has a substance abuse issue that impacts their ability to care for a child; whether there’s a history of domestic violence in the parties’ relationship; or whether a parent suffers from some sort of physical or emotional ailment that prevents them from being able to care for a child adequately,” he says.

“I think there’s a strong desire to maintain continuity for a child, so courts will also look at where each parent will reside after a marital dissolution” to see if the child’s current lifestyle and routines can be maintained, says Brown.

“Courts will strongly consider the level of cooperativeness and problem-solving skills the parties have and whether they are willing to encourage the child’s relationship with the other parent. The more conflict, the more acrimony, and the less likely people will succeed in co-parenting with someone.”

If it’s obvious from the get-go that there will be agreement, it’s probably not as crucial that counsel be retained immediately. But if there is an imbalance of power in the relationship or a complete inability to cooperate, or if the parents see the world very differently, then it’s probably a good idea to speak with a lawyer who’s a good fit.

Jason C. Brown

Can I Get Custody Without Litigation?

In his experience as a family law attorney Brown says, “there are three ways that child custody issues tend to get resolved.”

The first is through “direct discussion between the parties and their lawyers. The second involves going through mediation or some other form of alternative dispute resolution (ADR).” In mediation, an impartial third party helps parents evaluate the situation and reach an agreement.

“If these two options don’t work,” says Brown, “we’re left with the third option of going to court and letting a judge decide.”

“The good news is that probably 95% of the time, we are able to work things out without going to trial.”

Once agreed upon, written down, and signed by the parents, the parents’ custody arrangement is evaluated by a judge at a custody hearing. In custody decisions, judges tend to defer to plans parents have already agreed to. The judge will incorporate the parents’ plan into a court order, which gives the custody arrangement legal force.

Custody arrangements address a variety of issues, including:

  • Whether parents have legal or physical custody (or both)
  • Whether the custody is joint or single
  • Visitation arrangements for non-custodial parents, including a visitation schedule
  • Grandparent visitation rights, if relevant.

When Should I Get a Child Custody Lawyer?

For parents facing a child custody dispute, “I think it’s a good idea to start with a basic conversation with their soon-to-be ex on their feelings on custody and parenting time,” says Brown.

“If it’s obvious from the get-go that there will be agreement, it’s probably not as crucial that counsel be retained immediately. But if there is an imbalance of power in the relationship or a complete inability to cooperate, or if the parents see the world very differently, then it’s probably a good idea to speak with a lawyer who’s a good fit.”

Brown’s biggest piece of advice for parents who are facing a child custody dispute is “to focus not so much on labels, but on schedules and what’s really going to work for the child. Focusing on a parenting plan instead of custody labels makes for a much more pleasant conversation than one parent being able to raise the flag of victory, so to speak, against the other,” he says.

“It shouldn’t be too long in the future when custody labels are going to go away. It used to be that physical custody really meant something. Now, at least in Minnesota, all those underlying statutes have changed so that people often spend inordinate amounts of time and money arguing about a label that really has no meaning.”

It’s essential to “recognize that family court is a court of law but also a court of emotion for the participants. So, I think it’s important to find a lawyer who’s compatible on both fronts… Find a lawyer who fits with your temperament and approach to things. It’s really about both the law and emotions when it comes to family court,” says Brown.

Questions for a Child Custody Lawyer

To see whether an attorney or law firm is a good fit, ask informed questions such as:

  • What are your attorneys’ fees?
  • What billing options do you offer?
  • What is your experience in child custody cases?
  • What are my chances of getting custody of my child?
  • Will litigation be necessary in my case?

You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.

For child custody disputes, look for a custody and visitation lawyer in the Super Lawyers directory.

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