What Factors Affect Child Custody Decisions?

Going through a divorce is one of the most stressful life events that you can experience. When there are children involved and child custody is in dispute, things become even more stressful. 

If you are in the process of a divorce and fighting for custody of your child or children, you may be feeling overwhelmed and confused by the process. This guide will hopefully take some of the mystery out of the process and give you a better idea of how judges determine who gets custody. Ultimately, a child custody lawyer will be an invaluable resource to you during this process. 

Read on to learn more. 

Child Custody Basics 

Every state does things a little bit differently, but in most states, child custody refers to both the physical custody of the child as well as the decision-making authority over the child. 

Ideally, both parents will agree on custody and create a parenting plan that is approved by the courts, without any involvement from a judge. If the parents can’t agree, though, then a judge will determine custody. 

Legal Custody

In California, there are two types of custody. Legal custody is the ability to make important decisions for your children. These decisions could include things like healthcare, where they go to school, what activities they participate in, religious participation, travel, etc. 

Legal custody can be both sole or joint. In sole legal custody, only one parent has the right to make these decisions. In joint legal custody, both parents have the authority to make important decisions about their children. 

Ideally, both parents would agree on a decision if there is joint legal custody, but they do not have to. Each parent may make a decision on their own, but if they disagree, a judge may ultimately have to decide. 

Physical Custody 

Like legal custody, physical custody can be sole or joint. In sole physical custody, the children live with one primary parent and usually have visitation with the other parent. 

In joint legal custody, the children live with both parents. The time does not have to be equal, though, but divided in a way that works best for the children. Typically, the children spend more time with one parent due to scheduling and the difficulty of equally dividing time. This parent is often referred to as the primary custodial parent.

Determining Child Custody 

The best-case scenario is when both parents can agree on both physical and legal custody and avoid having to get the courts involved. If you can agree on a parenting plan that works for you, then you do not need to go in front of a judge. 

If you cannot agree, however, a judge will typically send you to mediation. During mediation, a mediator from a court-related program will work with both parents to agree on a parenting plan. If you still can’t agree, then you will need to go in front of a judge. 

Depending on the situation, a judge could appoint an evaluator to do a custody evaluation and recommend a parenting plan to the judge. If the custody case is particularly contentious, a judge also could appoint lawyers for the children involved. 

To decide what is in the best interest of the children, judges will consider a number of factors, including: 

  • The age of the children 
  • The children’s wishes (children aged 14 and older are usually permitted to address the court regarding their wishes about custody and visitation)
  • The children’s health
  • The emotional well-being of the children
  • Stability of the parents
  • Bonds and emotional ties between the children and parent (if one parent was particularly absentee, the other parent may have an advantage, especially if they are bonded to the children)
  • The ability of the parent to meet the child’s needs (if one parent works long hours and does not have suitable child care plans, they may not receive physical custody)
  • A history of violence in the home
  • Substance abuse in the home
  • The children’s ties to their school, home, community, etc. 

There is no guarantee of who will get custody. Even if you were never married or if you live a lifestyle different than the other parent, that does not preclude you from having custody of the child. 

Once custody is determined, parents could ask the judge to modify the order. If they ultimately are able to agree on a new plan, a judge will often approve that. If one parent wants a change, but they do not agree, the case will typically go back in front of a judge. 


In some situations, a judge may determine that neither parent is suitable to take care of the child and give someone other than the parents custody of the children. This is called guardianship. 

Grandparents, other family members, or even family friends could be given guardianship of the children if the judge believes that they are more capable of caring for them than the parents and that it is in the children’s best interest. 

Hire the Best Child Custody Attorney 

If you want to ensure that your children are well-cared for and that you receive custody, you need a well-regarded and experienced child custody attorney. This is especially important if you and your child’s other parent cannot agree on custody, visiting, or child support. 

An experienced family law attorney in Los Angeles can help you get custody of your children or get the visitation rights that you wish. 

If you are facing a child custody battle, contact us today. Our attorneys specialize in divorce and child custody cases in Denver and Los Angeles.