Who Can Be Awarded Custody and How Is This Determined?

Holding Hands After Child Custody Case
January 7, 2019
|   updated:
November 3, 2023

Most people who say “I do” don’t expect their marriages to end in divorce, but almost half of them do. That leaves couples with children facing a heart-wrenching dilemma: Where should the children live? About a tenth of couples decide to share custody more or less equally. In the remainder of the cases, one person will have physical custody. Deciding who that person will be can be a complex process.

Know the Basics of Custody

The most common custody arrangement is for one parent to have physical custody, meaning that the child will live with that parent. Usually the other parent has the right to spend time with the child on a regular basis, commonly referred to as parenting time. Most often, no matter how the physical custody is decided, the parents share legal custody, which means that they make joint decisions about matters such as medical treatment and schooling issues.

Agreements about custody can be reached by the divorcing parties, alone or with help from their attorneys or a mediator. Sometimes the parties are not able to come to an agreement and the court must make a decision. Once custody is decided, it can be changed, but getting the court to agree to a revision of the decree is seldom an easy matter.

In cases where the parents of a child are unmarried, the mother has sole legal custody unless paternity has been established. If a man has been legally recognized as the father of a child, he becomes eligible to seek custody. When same sex couples split up, questions of custody can be very complex, depending upon whether both parties have been established as legal parents.

That All-Important “Best Interests of the Child”

When deciding which parent will have physical custody, courts are directed to consider the “best interests” of the child. There is no single formula for making this determination, but courts are often predisposed to award custody to the person who has been providing the bulk of care for the child. Continuing this pattern is considered to provide the child with continuity. Other factors are important, but the list of relevant factors varies from state to state. Typically, however, if you seek physical custody of your child, the court will need answers to these questions:

  • Do you want custody of your child?
  • Are you mentally and physically healthy?
  • Do you have a strong relationship with your child?
  • Will you support your child’s relationship with the other parent?
  • Can you provide a stable and loving home?
  • Can you provide for your child’s physical, mental and emotional needs?

A child who is a certain age – usually 12 or older – may be asked which parent he or she would prefer to live with. The judge is not, however, bound to honor the child’s wishes.

A judge will also consider evidence suggesting that a parent has been abusive or neglectful toward a child or guilty of domestic abuse. However, the court can also consider any false allegations of this type made by one parent about the other.

What About Third-Party Custody?

Under certain circumstances, custody of a child can be given to a third party, although such arrangements may be referred to by another term, such as guardianship, rather than custody. These arrangements can come about in a number of ways, including these:

  • Both parents may be reported to social services for child abuse, neglect or abandonment.
  • One parent may be dead or missing from a child’s life, and the remaining parent may be reported for abuse, neglect or abandonment.
  • One or both parents may have voluntarily given up the rights to a child.
  • A third party may have been caring for a child for an extended period and may sue for custody.
  • A third party may sue for custody, charging unfitness on the part of the person or persons with custody.

Giving custody to a third party is a serious move that courts do not do lightly. Parental rights are strong. Even if custody is given to a third party, parents may be able to sue to regain their rights at a later time.

Grandparents may be interested in gaining custody of their grandchildren, but they have no special standing in a third party suit. They may not like the way their grandchildren are being raised, but that isn’t grounds for giving the grandparents custody. Similarly, they are not entitled to custody on the grounds that they would be better providers for their grandchildren than the parents have been. Grandparents who have raised their grandchildren for most or all of their lives have the highest probability of winning custody, but the courts will still give preference to the parents in most cases if the parents are up to the task of child rearing.

Alcohol Use and Child Custody

A parent with Alcohol Use Disorder is not automatically eliminated from consideration for custody and parenting time. The primary consideration is the parent’s behavior while with the child. Those in recovery who have proven themselves responsible parents may be awarded custody if there are other factors in their favor.

Once awarded, custody can be modified, but the courts do not make changes in child custody lightly. Generally speaking, custody will be modified only for a “material change in circumstances” that affects the best interests of the child. Of course, the court is most likely to consider a change if there is a concern for a child’s safety.

If the court was aware of a parent’s struggles with alcoholism and still awarded custody or parenting time to that parent, the original decree will not be altered for that reason alone. The other party must demonstrate that the parent with Alcohol Use Disorder is drinking irresponsibly and could put the child at risk.

Remote alcohol monitoring can be helpful in establishing that a parent is maintaining sobriety and can be trusted with the care of a child. The other parent, officers of the court and all those who love the child can rest easier when such a system is in place. Those being monitored also benefit because the system allows them to demonstrate a commitment to sobriety and increases their chances of maintaining close ties with their child. The most important beneficiary of such a system is the child, who reaps the benefits of two involved parents.

About the Author

Susan Adcox is a former teacher and a writer who specializes in generational issues, including parenting, grandparenting and family relationships.

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