Who Keeps the Children During Divorce?

Last Updated: October 24, 2022

Worried about who keeps the children during divorce? Don’t be – our team of divorce attorneys and child custody experts will get you what you deserve! When parents’ divorce, issues regarding property and financial issues typically take back seats to their children. Divorce is a major upheaval for the family unit and parents must decide who will care for minor children until they reach adulthood. Talking to children about the divorce before it happens can make the process easier for them to handle. In the meantime, parents must work out a custody arrangement. Family law attorneys work this process out by drafting a Parenting Agreement that lays out the custody, visitation and holiday schedule that each party gets to share with the children. Most divorce lawyers (all of them here) provide free consultations to discuss your divorce and custody issues!

Custody of Your Children During Divorce

In the best-case scenario, parents agree on a plan for child custody during the divorce and finalize the arrangement without fighting it out in court (which can last for years). In some states, custody is not the term used, so be alert for phrases like “allocation of parental responsibility” or even “guardianship” – these mean the same thing as custody. A counselor, mediator, or lawyer may help parents work out visitation schedules and the amount of child support. The final arrangement should always be put in writing and presented to a court for approval. A family law lawyer is an expert at doing this, freeing parents to deal with other details. It is possible, with the right help, to win custody of your children during divorce!

When parents cannot agree, they should head to court. If both parents want to win primary custody during divorce but one does not agree that the other should have it, each should have a divorce attorney prepare a solid case for joint or sole custody (also called the primary allocation of parental responsibilities). These days, courts are more willing to award joint physical custody of children during divorce, allowing children to split time between their parents.

Elements to Win Custody of Children During Divorce

Several factors (elements) go into a court deciding who should have primary custody or the majority of parenting time with the children during divorce. It is essential that parents that want to maximize their allocated parenting time understand the main elements and make moves in her/his personal life to align with as many elements as possible. There are many, but the main factors all relate to the “best interest of the children” standard, which is used in all 50-sates. Here are the main elements court use:

• Daily Routine / Consistency
• Ability to Parent
• Willingness to Co-Parent
• Preference of the Child
• History of Abuse/Neglect

These will typically be the primary elements each divorce judge will consider when making a custody decision. Again, these are not all the factors, but these are some of the big ones.

Daily Routine / Consistency

The first thing that a judge looks at when making even a temporary decision on custody of children during divorce is keeping things consistent. Judges realize that divorce is a traumatic event for children. To help alleviate some of those stresses, judges attempt to keep things as close to normal as possible. This means that a child’s living arrangement is kept as close to the same thing as if the parents were still together. If one person is going to be staying the family home post-divorce, a judge might want the kids to spend most of their Monday-Friday there so school schedules aren’t interrupted.

Consistency and routine also deal with issues like school, friends, and extracurricular activities. Even if both parents move to different houses/apartments, a divorce judge wants to keep the normal routine the same. Keeping kids in the same school (unless it is a bad school and significantly better options exist) and keeping them on their baseball or dance teams is important. Judges don’t want kids lives completely upended.

Ability to Parent

At first glance, this seems like a no-brainer. You would expect that any parent fighting for equal or the majority of parenting time to have a basic ability to parent. But, this goes farther than that. For example: suppose a parent works night shift, how are they able to “parent”? for the majority of the time (working days, at least), they probably aren’t able to do so because of her/his work schedule. Changing the work shift to a 9-5 (or similar) would have a big impact on the ability to parent.

Beyond work schedules and similar issues, does either parent have a bad relationship with their kids? Has either parent gotten DUI’s recently or have substance abuse problems? Does one parent do everything and the other is not involved in day-to-day child rearing duties? Being able to parent, for legal purposes, means more than just being available – it means actively being involved in your child’s life. Coaching a team, communicating with teachers, and helping kids with their homework – this is being actively involved and showcases parenting abilities.

Willingness to Co-Parent

This is an element that is often overlooked. Why would custody be determined partially on if a parent wants to co-parent with his or her ex? Well, judges want consistency, and they want what is in the best interests of the children. Judges do not care what either parent wants, they only want what is best for the kids. In general, it is best for the kids to have parents that can work together amicably and not fight. It is best for kids to have 2-parents that can geta long during family or school related functions. Showing that you are able to separate the marriage issues and are able to work with the other parent for the kids proves that you are able to co-parent – which is what is best for the children during divorce.

Preferences of the Child

Some parents think that when a child turns 13, or 14, or some other magical age, that they get to decide which parent they get to live with. This is 100% not true. The court will consider a child’s input on living preference if they are mature enough and make good decisions and if they are old enough to do so. There is no magic age here, but normally, we would be talking about someone older than 13 years old. Now, a child’s preference might mean nothing to a judge in a number of scenarios.

Take for example: mom is super cool and fun, she lets the 14-year-old child have parties all the time, doesn’t enforce any bedtimes, and doesn’t make the child do her homework. Dad, on the other hand, has strict rules. Bedtime is 9:00pm, and homework gets done after school before hanging out with friends playing video games. The child wants to live with mom because it’s awesome! Not so fast – the judge’s decision is based on the best interests of the child – and here, it seems the best interest of the child would happen at dad’s house, not mom’s.

History of Abuse

Any history of abuse is a gamechanger when a custody battle takes place. If a parent has abused his/her child, a judge will almost certainly place that as the highest priority when it comes time to decide who gets parenting time or decision making for the children during divorce. No other issue is more important than keeping the child safe.

Winning Sole Custody of Children During Divorce

Winning sole custody during the divorce process is possible, but it is no small task. It can be more difficult to win sole custody in divorce because the petitioning parent must prove that the other parent is an unfit caregiver. Sole custody (or sole allocation of parental responsibility) is typically only awarded when one parent is abusive, neglectful, or has a substance abuse issue. The other parent must prove this, making the services of a lawyer for the child (called a guardian ad litem or child representative) almost essential. A substantial amount of evidence is required to sway the court in this direction.

Sometimes this is necessary to protect a child. Other times, it is just a matter of the parents cannot get along enough to co-parent at all, so one parent must be given the right to make decisions for the child or else nothing will happen.

Parents who find themselves in a custody battle in divorce must be very careful. Whatever they say or do could affect their ability to receive custody and the amount of parenting time they might be awarded. Courts do not look favorably upon parents who insult each other or one parent turning children against the other. No matter how difficult the divorce becomes, there is no excuse for behaving immaturely. Children pick up on this and it may cause them to become problems at home or school. These are factors that would push a judge to award sole custody (primary decision making) to just one parent.

Next Steps

Whether you are seeking sole or joint custody in divorce, it is essential that you adjust your life to fit the factors described in this article. Failing to do so will almost certainly eliminate any chance you have of equal or primary custody of the children during divorce. The most important factor is what is best for the children so do not lose sight of this. Don’t forget that you can win custody of your children during divorce but speaking with a divorce lawyer should be your next step. Divorce lawyers provide free consultations, so take advantage of their experience and contact one right away.