Last Updated on September 23, 2022 @ 4:20 pm

Fighting with your ex over bank accounts and assets is tough enough, but what do you do when it comes to the kids? If both parents want primary custody of the children and there seems to be no middle ground, you are forced to show the courts why you are the better parent. Does this mean you need to point out the weaknesses of your ex spouse? Not necessarily, as an approach such as that can be just as damaging in that the judge may perceive you in a negative light. The ideal strategy is one that shows the court you have the best interests of the child in mind, even if it does not mean you have full and sole custody of the children.

The Burden of Proof

If you are seeking sole custody, (or as commonly referred to in many states now, “Primary Allocation of Parental Responsibility”), you are telling the court that the children are better off in your custody alone and with you being the primary decision maker for significant child-rearing decisions like medical, school, or religion. This is a large burden to prove to the court and one in which you need to be very careful about presenting. Unless there are extenuating circumstances, such as a situation where there is a legitimate danger to the child, the courts will not want to exclude either parent from the life of the child. If, up until this point, both parents have been active in the life of the children, why is one parent now claiming he or she should be the sole caretaker of the children?

When trying to prove to the court that you are in fact the better parent, some parents will take the route of trying to discredit the other parent. While some of these claims may be legitimate, bringing up issues that simply bother you will not be taken seriously by the court. This will come off as an attack on the other parent and actually makes you look less desirable to the judge rather than proving how bad of a parent your ex-spouse is. The line of presenting yourself as the better parent vs attacking your ex can be very fine. It likely involves mistakes (significant) that your ex may have made, but it should primarily focus on the positives in your life: stability of your home, school rankings near you, hours that you work, past and current involvement in your child’s life, who makes and attends medical appointments, etc. The list is endless, but should be the focus of your case. This all comes down to how well you present yourself to the court.

Presenting Yourself at the Better Parent

Instead of focusing on your ex, keep the focus of your argument on yourself. This does NOT mean ignoring significant negatives of your ex – maybe he or she recently got a DUI or has a history of some type of abuse. What this means is focusing on the main elements that make you shine to the judge.

There are two primary concerns the court will look at when deciding which parent should get custody of the kids:

  • Physical well-being
  • Psychological well-being

Physical Well-Being of the Child or Children

This first area covers a lot of ground, not just the “physical” condition of the child. For instance, during a divorce, the court will not want to disrupt the regular routine of the child or children as little as possible. If, for example, they are involved in after school activities, such as sports or a play, will being in your custody and care allow the normal routine to continue?

This area also addresses things such as normal sleeping schedules, eating habits, and schooling. Ask yourself this question, “If I win custody, will my child’s everyday life dramatically change?” If the answer is no, you are already on the path to proving you are the better parent in terms of the overall well-being of the child or children. Now all you have to do is explain each point in detail to the judge and convince him or her of these points.

Now, don’t think that a substantial change in a child’s routine is necessarily bad if that change is significantly better. If the change is merely spending the majority of the time at your house versus the other parents house but nothing more, that is the type of shift that uprooting a child may not be best according to the judge. But if the change is more like this: now the child has his/her own bedroom; a parent is home when the child is out of school; now the child has a yard to play in; now the child is able to attend activities because the majority time parent has the ability to attend sporting events, etc., your chances of showing why this large shift should take place and will be positive make a lot of sense. Judges don’t want to shake up a child’s life unless there is a really good reason to do so – be that reason and get involved.

Psychological Well-Being of the Child or Children

It may seem counter-intuitive, but actually encouraging a relationship with the other parent is much better than telling the court that you want the other parent completely removed. This does not mean you want to give up custody or parenting time, but that you are more than willing to work out some type of visitation arrangement that will allow that to happen if you are granted full custody / primary parenting time.

Again, unless there is a legitimate reason why your ex should be prevented from seeing the child or children, the courts will want that parent to be involved. It is extremely important for you to be able to accept this if your ultimate goal is to win sole custody of the children.

All states decide who should make decisions for the child and who should be the parent with the majority of parenting time with the child using what is known as the “best interests of the child” standard. This varies from state to state, but it has many common aspects to it, one of which is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child“. (This is taken directly from Illinois statute, but most states have similar wording).

How Does the Court Decide Who is the Better Parent?

In addition to the physical and psychological well-being of the children, the courts will also take a very hard look at the parents, obviously. There are a few factors that will help the court decide which parent, if not both, should have custody of the children during divorce:

  • Can both parents reasonably participate in the lives of the children post-divorce? At the very least, the courts will usually grant visitation rights / parenting time to a parent even if he or she is not granted joint custody (shared allocation of parental responsibility). The main reason being that, the court does not simply want to pull one parent out of the life of the child unless he or she presents a danger to the child.
  • Does my parenting style make me the better choice? In all honestly, no, it does not. Having a different parenting style and exploiting this to try to gain custody will have little to no effect on the overall outcome of the case. In fact, by challenging your ex-spouse’s parenting style, you may come off in negative light to the judge. Can you mention it? Sure, but it should not be the sole focus of your case. As long as the other parent is raising the child properly, their “style” is not really a factor. One significant difference here is whether corporal punishment is used. Things have changed since the 1950’s – and most judges will outright order parents to avoid corporal punishment.
  • Do you have the child’s best interests in mind? You may think it best to prevent your ex from seeing the children, but is that in yours or their best interest? Are you doing this simply because you do not want to “deal” with your ex? Preventing him or her from being involved is hardly in the best interests of the child or children. Are you not paying court mandated child support because you do not like how your ex is using the money (don’t ever do this)? Are you blocking phone calls and preventing your ex from being able to speak with the children other than the mandated visitation times? Any of these behaviors will hurt your chances of winning sole custody or parenting time and visitation rights with your children. Avoid giving any ammo to your ex to use against you – no matter how small it may seem!

What if I Don’t Win Sole Custody?

In many cases, the courts simply are unable to prove that one parent is in fact the better parent (or, more likely, that one parent is significantly better than the other). When this happens, joint custody or a shared allocation of parental responsibilities is awarded and the children will spend time at both homes – keep in mind that the amount of parenting time each parent has might be quite different – a judge might order the parents to jointly make all decisions for their child (school, medical, etc.), but give one parent the majority of parenting time. For the parents, it is best to try to work out some type of agreement so the scheduled days work well for all involved. It will also show the court that both of you do indeed have the best interests of the children in mind as you working together to create a workable agreement that benefits everyone.

This is also not necessarily a bad thing. Joint custody (shared allocation of parental responsibility) means both parents retain a parental role in the upbringing of the child. Both parents are expected to be involved in decisions such as religion, medical care, and schooling. It is also expected the parents will agree on things such as discipline so there is consistency in place regardless of which home the children are in at the time. If one parent does not live up to his or her end of the agreement, you may consider going back to court for a child custody modification agreement, although most courts will require you to first attempt to seek mediation to solve the problem. When a problem can’t be solved through use of a mediator, or if the problem is urgent, the courts will need to be involved to make the final decision.

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10 thoughts on “How to Prove You are the Better Parent”

  1. Florence ferdinand

    I have a question.i got a family member who in court over custody of their child.their ex and family violated every order of protection to stay away and on our side the sperm donor done nothing for the child since she was born and when the baby was diagnosed with cancer the father done nothing for the child the doctors at the hospital came and testified on our behalf on why the family shouldn’t be around the child when all the father side want to harm the mother and threatened to kidnap the baby the judge still bias and forcing my family member to give the father side rights is there anything can be done removing a judge in New york?

  2. Hello I got 8 age old son and he’s in care at the moment I got court coming up next year and my solicitor said it’s not looking good to have my son back with me how do I tell them I can cope and protect him from harm. I need some tips to get this sorted and have my son back to my care. They think I can’t look after him I did my assessment and samethings wasn’t looking good anyone can Learn parenting can’t they

  3. My Fiancé is sharing custody of her two girls. Her ex just started getting kids again after 2 months and started making demands. Court order says that he’s suppose to get the girls for an hour Thursdays and Friday night to Sunday night. He doesn’t pay child support and goes from woman to woman living off of them. He recently got back with one of his ex’s that he’s had a fight with before. My question is, is any of this gonna help my fiancé win a custody case?

  4. My wife and I are trying to get custody if her two young boys. The father has blocked us from talking to him and them. On fb and on his cell phone. We have also tried going by his house an he refuses to open the door or makes sure he isn’t home when we text him that we’re in town after he unblocked us.We have asked to see the kids multiple times and everytime he completely ignores the statement. He has threatened me when we lived in the same city when I worked a block away from his home when I called her youngest child my step son. He has made racist remarks towards me and has had multiple cps cases called to the house. We want sole custody because he hangs out with people who have robbed him(admittedly) and may put the boys in danger. We moved an hour south of them a year ago to help my mother in law with health issue but now she has moved we have a a room for them, we have a reliable vehicle we live in a community with a good school, her sister lives 5 minutes away and we are part of the volunteer fire department. But we are scared that because they have lived with him the last 3 years and we have been able to have little to no contact that the judge will only give us visitation. I have a full time job with benefits and my wife stays home now and will continue too if we get the boys. What are the chances we could get sole custody of the kids with him having visitation since he has already isolated us all this time with proof and is trying to move the boys to a state 9 hours away with absolutely no support systems. We can’t afford a lawyer.

  5. I am trying to get shared parenting of my son my ex keeps trying to give me less and less time with my son anytime I ask for extra time to spend with him she denies me the time she is trying to get summers taken away from me to where I only get him one week during the month and then my standard every other weekend I try to get it to where my son has close to equal time with both of us neither one of us are bad parents she is a good mom just as I am a good father how to I prove to the courts that we should have shared parenting because its in our sons bet interest to have both parents in his life not just her.

  6. Casey Sartorelli

    Trying to figure what I need to do my ex is not obiding by the court agreement.Im surpose to see my kids on Thursday for a. Hour havent been able to for four year due to he move the children with out me know to a different part of the state where me and my fiance have to drive 3 hours instead of just around the corner. I get to see them every other weekend as mandated in the court agreement. My son has threatened to want to kill my ex CPS was called and other stuff was found out going on in the house sending my son to bed without eating when not wanting to eat dinner .Still doing it.The reason why I didn’t get my kids in the divorce I was found in default. I didn’t know the court date and time I never saw the second notice that should the date and time and me and ex lived together till my kids were going to be comfortable of him telling us he was becoming a girl.Hes transgender. I lived with him almost three years after are divorced and felt with emotional and physical abuse toward the end.He said the only reason why he had kids with me to change his sexuality He doesn’t share the kids educational records like report cards ,like giving me copies,inform me of there teachers,he lied to the school where I live giving them false address wherein live.He told the school I live in Austin and I live in Killeen.

  7. If my ex does not have a permanent address and stays at friends houses. Is that a valid enough reason for the children to not do overnights? Will that give me a chance to get sole custody but give her visitation?

    1. IT’s probably a good argument to have, especially if she is “couch surfing” from one friends house to the next. However, if it is more of a permanent stay that will continue for a long period of time and there is a separate bedroom for the kids, that cuts back a bit on your argument.
      More details are definitely needed and you should speak with our team of child custody attorneys to provide you more insight.

      That being said, the main factor that courts use in determining who should have primary allocation of parental responsibilities, or primary custody / sole custody / residential custody, is called the “best interests of the child” standard.

      Many things go into what in the child’s best interests, and stability of living arrangements is absolutely near the top of the list.
      Gather up proof of this, make sure your house is in impeccable order, and get started immediately – these types of things need to be handled quickly and done the right way the first time, it is often difficult for attorneys to fix mistakes that are made when a person without an attorney attempts things hastily, so give our team a call soon.

  8. Hello, Iam currently in the process of a custody case involving two small children. I’am looking into relocating to Pennsylvania before custody begins to provide a safe and stable environment for my children and Iam trying to seek full custody. Iam also looking to see if we could get free legal counsel due to the fact that my smallest is not in daycare yet and Iam in between jobs at the moment. Please if I could get any assistance

    1. This sounds like a a difficult case. If you are looking to relocate to another state, the bar is high to prove that it is in the best interests of the children to place such a severe limitation on the other parent. That being said, it is not a rare circumstance either.
      If a case has already been filed, most states would not allow you to leave without the courts express permission in the form of a written order by the judge. And eve if there is no case, if you leave, and the other parent files an emergency motion a week later, it is likely that the court will force you to come back. This can hurt your case a lot as it shows the court that you are possibly trying to limit the other parents involvement with the kids.
      Relocation requires a number of things to be granted: better job, better hours, better money, better schools, better living arrangements, better/more family around, etc. The main point is best interests of the children, just being better for you is not good enough, it needs to be compelling, almost 1-sided how much better it is to move in order for a court to grant it.
      It will be difficult to obtain legal aid for something of this magnitude, but we do not handle that.
      Best of luck to you, and please, give us a call if we can help more!

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