Child custody is a huge issue for divorcing parents that can raise a lot of conflict. If it is necessary to go to court to get your divorce settled, here are some of the criteria judges typically use in determining who gets child custody.

By M. Marcy Jones

Child custody can be a highly emotional and charged issue in getting divorced. Ideally it is best when the divorcing parents can work it out how to custody of their children, visitation and decision-making about their children should work between themselves. But in some cases your attorneys are not able to negotiate or mediate how to agree on custody and your case may end up in court before a judge.

If the courts are involved in this dispute, a judge will make his or her decision based on a standard called “the best interests of the child.” The judge considers a number of factors in deciding custody, typically including:

  • The age and physical and mental condition of the child, as well as the child’s changing developmental needs.
  • The age and physical and mental condition of each parent.
  • The relationship existing between each parent and each child, giving consideration to the positive involvement with the child’s life, and the parent’s ability to assess accurately and meet the emotional, intellectual, and physical needs of the child.
  • The child’s needs, including important relationships, such as those with siblings, peers, and extended family members.
  • The role each divorcing parent has played, and will play in the future, in the upbringing and care of the child.
  • The tendency of each parent to support actively the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.
  • The willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.
  • The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference.
  • Any history of family abuse.
  • Other factors the court determines are important.

You will find these or similar “guidelines” for the court in deciding child custody in the laws of most states. In his ruling, the judge will go through each of these factors, like a checklist, and will decide whether one or the other parent best meets the children’s needs. The judge will make his or her ultimate decision regarding custody based on which parent comes out ahead.

Other factors the court determines are important” is language that gives the court a tremendous amount of discretion. Here is where it gets scary for clients and hairy for lawyers to try to predict for their clients what a particular judge will do in their case. A case can be somewhat predictable based on the law, but never predictable based on the judge. Judges are human beings, like you, with good days and bad days, and with life experiences and biases, just like all of us.

Even when I have what I feel is a strong case for custody, I have to tell my clients that there are no guarantees. It’s always a roll of the dice to walk into the courtroom.

MARCY JONES is an author, speaker, lawyer, and advocate for change. She has practiced family law since 1995. She went to Washington & Lee University School of Law after her own divorce and with two young children at home, and has worked as a domestic violence prosecutor and then in private practice. Marcy is a settlement expert and conflict resolution advocate, specializing in collaborative practice. She is also a trained mediator and certified personal coach. She lives in Lynchburg, Virginia. For more information, visit her website at and