For many couples, the most difficult part of the divorce process is resolving the major issues involving the children, such as where they will live, how they will be raised from that point on, and how much time they will spend with the non-custodial parent. Ideally, these decisions can be made by the parents themselves out of court, as this alternative is much less traumatic for the children. However, when divorcing couples cannot agree on one or more child custody issues, a court will intervene and make a decision based on the child’s best interests.

Child custody law involves two types of parental rights- physical and legal, and they are treated as separate and distinct issues. Physical custody involves the determination of where the child will physically spend most of his or her time. Legal custody, on the other hand, is the right to make decisions about the child’s major life issues, such as its education, health and religion. This type of custody is often shared, whereas physical custody usually goes primarily to one parent, with the other parent getting set parenting time.

When parties cannot agree on a legal or physical child custody arrangement, a court will make the decision for them. This decision will be based on the court’s examination of several factors, and will always be based on the best interests of the child. This means that the court will often give a great deal of weight to the parent who has been the child's primary caretaker up to that point, although that is not the sole issue considered. Other factors typically weighed are:

  • The wishes of the child, if the child is old enough to have a preference and communicate it to the court.
  • Stability of the new home, school, and community environments.
  • Age and sex of the child (very young children are usually awarded to the mother).
  • Mental and physical health of the parents, including history of physical, emotional, or substance abuse.
  • Opportunity for continued relationship with extended family.

Child custody orders are never permanent, and they can be modified when it would be in the child’s best interests. However, modification is generally only possible when there has been a substantial and material change in the life of the child or one of the parents. This rule exists to discourage constant fighting between the parents over the child custody arrangement, and to promote stability in the lives of the children. Along those lines, custodial parents are typically allowed to move out of the city or state if they have a legitimate reason, even if the move will significantly effect the parenting time of the non-custodial parent.