Can I Fight for Custody in Divorce?

Last Updated May 24, 2022

The short answer? Yes! When a married couple with children decides to split up, one decision they need to make is whether they have the resources to fight for custody in divorce. The divorce process is emotionally, mentally, and financially difficult. In addition to dividing assets, parents must make childcare decisions. When both parents want custody of their children, differences may arise regarding the form that this custody takes. It may come down to the parents fighting for child custody during divorce. No matter the situation you find yourself in, fighting for custody rights is your right – and an initial free consultation with a lawyer is typical for these matters.

Lawyers Help You Fight for Custody in a Divorce

While many courts now award joint custody in divorce cases, this was not always true. In previous decades, fathers had to fight for custody of their children. The ability of a father to win sole custody in divorce was almost unheard of during those times. Although some judges still hold a bias towards awarding mothers primary custody and decision making, fathers can and do win primary custody with assistance from an experienced family law attorney. Rest assured you are getting the best child custody help and advice possible when you work with an attorney instead of going to court on your own (this is known as being a pro-se litigant). Father’s rights have expanded, and in many instances, fathers are able to fight for custody in divorce and win. The key to any custody case is presenting a solid argument regarding parenting skills and abilities – this is how you fight for custody in divorce!

A parent who is unhappy with custody discussions if they proceeded without an attorney should get child custody help from a specialized family law attorney to fix their parenting situation. Clients and lawyers will then work together to prepare a case for physical or, in some states, legal custody.

Physical Custody Versus Legal Custody

There are differences between these two types of custody. Parents may fight for joint or sole physical or legal custody. First of all, it is important to know that some states call “custody” something else: custody may be referred to as guardianship or the allocation of parental responsibilities. This can make it confusing, but the concept is the same, even though the wording is different.

Physical Custody

Physical custody is the right to have the child live in a parents home. In many states where parents are not equally (50/50) sharing the child, one parent may be designated the “residential parent” or the “custodial parent.” This ordinarily does not impact the legal rights or responsibilities of either parent, but it does serve to make it clear that one parent has the child more than the other.

Legal Custody

Legal custody is the authority to make decisions regarding the upbringing, education, and health of the child. Legal custody, in some states, is referred to as “the allocation of parental responsibilities” or “decision making.”

Is Joint Physical Child Custody Possible?

It is possible, in many instances, to fight for custody during divorce and request joint physical custody. This would mean that you are specifically looking for some type of a 50/50 parenting arrangement with your child. It might be alternating weeks with your ex, or something different. If parents plan to reside near each other, joint physical custody may be awarded much more often because of things like location to friends, school, or the child’s activities and sports teams. The court will take into account whether this will cause a disruption in the child’s life, and an experienced divorce lawyer will know whether it is worth the fight for custody in divorce with a particular judge.

If the parents, after separating, will live far apart, the court usually grants primary physical custody to one parent. In many states, this parent, where the child will reside on a full-time basis, is called the “residential parent” or the “custodial parent.” This means that the child will live with this parent most of the time and the other parent will receive limited custody or visitation (also called “parenting time” in many states). This prevents the child from experiencing an unsettled life created by constantly traveling between parents.

Getting Sole or Joint Legal Custody

Because “legal custody” is the decision-making side of raising a child, parenting time does not necessarily matter. The ability to have joint decision making shared between the parents – regardless of whether one parent has the majority of the parenting time – happens in the majority of divorce cases involving children. If parents receive joint legal custody, they must make these decisions jointly, which requires them to cooperate. If one parent makes unilateral decisions, the other may request legal enforcement of the court order for joint legal custody. Sometimes, having both parents communicate and co-parent regarding child-rearing decisions (medical, sports, education, etc.) just isn’t possible.

When one parent is awarded sole legal custody, that parent will have the authority to determine which school the child attends, the type of medical care the child receives, and the type of religion that will be practiced. The parent making those decisions though still needs to notify the other parent of his/her decision.

Modifying a Custody or Parenting Agreement

Though each parent may agree to particular custody arrangements when divorcing, one or both may change their feelings over time. If this happens, a family law attorney can help the dissenting parent present the issue to the court in an attempt to alter the custody arrangement. Many states have guidelines for how this proceeds. Guidelines might be that the parents need to wait 2-years first, unless there is a “substantial change in circumstances” that makes waiting not an option. Other guidelines are requiring parents to attend mediation to resolve their dispute first, and then filing a motion to appear back in court.

Next Steps to Fight for Custody During a Divorce

First, begin organizing everything related to your children and how you are involved in their lives. This might be names of teachers, coaches, or church friends. Then, begin journaling everything that you do – such as attending PTA meetings, volunteering at your child’s school, or coaching her/his sports teams. Showing your involvement in your child’s life is the best way to prove to the court that you should have sole or joint custody during your divorce. Lastly, hire an experienced divorce attorney to present your side of the case properly to the judge – this step is essential, and you should be picky who you choose by taking advantage of the free initial consultations that many divorce lawyers offer.