How Is Child Custody Determined During a Divorce?

by LegalFix
Posted: March 28, 2023

During a divorce, there are many things to keep track of. Choosing an at-fault or no-fault divorce, issuing or responding to divorce papers, and thinking about property division are all important issues to consider.


If you have children, however, the most crucial question you may ask is how child custody is determined. Child custody can be the most challenging part of a divorce for many couples. 

How Is Child Custody Determined? 

There are a number of factors that go into determining child custody. Although the divorcing parents’ wants, needs, and feelings do play some role, overall, the court is primarily concerned with finding what is best for your children. 


Because of this, the judge will look at factors like your respective parenting skills, employment status, living arrangements, and lifestyle of you and your partner. For example, if one parent will be staying in the current family home, the judge may favor that parent to offer some measure of stability to your kids. 


Depending on which state you live in, agreeing to take divorce education courses as a parent may impact your ability to gain any form of custody. While not always mandatory, agreeing to attend counseling and divorce education can help your case.


If your kids are old enough, they may get a say in where they live, as well. In many states, children 12 and older are allowed to decide for themselves. Even if they are not old enough to make a decision in the eyes of the court, if your kids express a clear preference for living with one parent (or an aversion to the other), their wants can play a major role in how child custody is determined. 

Uncontested or Delinquent Divorce

All of the above considerations are primarily relevant in cases where the two partners negotiate the divorce terms — almost always with the help of an attorney. But sometimes, both parties agree to the terms set out in the initial divorce filing, including child custody and property division. This is known as an uncontested divorce. 


If you fail to respond to divorce papers within the allotted time, you may be legally considered to have agreed to your partner’s requested terms of divorce, whether you want to or not. In a delinquent divorce, the court will assume that you agree with everything stated, claimed, and requested in your partner’s filing. In this case, your partner will usually be granted all of the terms they requested, including child custody. 

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Author’s Bio 

Neal Nagely is the founder and CEO of BookLawyer, a free legal information site for individuals and small businesses. Neal practiced law in Dallas, Texas, for 10 years before creating BookLawyer to help people get answers to their legal questions and have affordable access to a lawyer when necessary. 


For more information, please visit Neal’s LinkedIn.