Ask a Divorce Lawyer: What is the determining factor in who gets custody of children?

Question: What is the determining factor in who gets custody of children?


Answer: When determining custody and placement of the children, the best interests of your children is the determining factor for the Court. 

Legal custody and physical custody are two different determinations for the Court.  Often times, people confuse the two.  Legal custody refers to the parent’s legal right and responsibility to make decisions for the minor children pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the children will spend with each parent.

Each state has different laws to determine custody and placement of children in its jurisdiction.  I do not practice in Texas so I do not know what the laws are governing custody and placement of children.  In my jurisdiction, the Court considers the following to determine the best interest of a child:  the wishes of the parents, the wishes of the child either communicated by the child or through a guardian ad litem, the relationship the child has with each parent and siblings, the amount and quality of time that each parent has spent with the child in the past, reasonable life-style changes proposed by a parent to be able to spend time with the child in the future, the age and needs of the child, the child’s adjustment, mental or physical health of the parties or child, availability of child care services, the cooperation and communication between the parties, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, whether one party unreasonably refuses to cooperate or communicate with the other party, whether each party can support the other party’s relationship with the child, whether a party has engaged in abuse of the child or the other party, criminal records of either party and those whom the party resides with or is in a relationship with and whether either party has had a significant problem with drugs or alcohol.

Although I do not practice in your jurisdiction, Cordell & Cordell has many attorneys licensed and located in Texas who would be happy to explain the relevant caselaw and statutes relating to determinations of custody and placement.  


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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