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How The Court Awards Child Custody

Legal custody refers to the major decision-making for the child. It does not refer to the amount of time that the child spends with each parent.

Physical custody refers to the amount of time the child spends with each parent. The parent with whom the child is living on a given day generally makes the day-to-day decisions for the child. Some courts will skip identifying the primary physical custodian and describe the parenting time (schedule) the child will have with each parent.

The court awards legal custody based on what the judge decides to be in the child’s best interests. The child’s preference of where to live, while important, is just one of many factors the judge considers. Other factors include:

  • Love, affection, and other emotional ties between each parent and the child
  • The capacity and disposition of each parent to give the child love, affection, and guidance, and to continue the education and raising of the child in its religion or creed, if any
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of the medical care, and other material needs
  • The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
  • The permanence, as a family unit, of the existing or proposed custodial home or homes.
  • The moral fitness of each parent
  • The mental and physical health of each parent
  • The child’s home, school, and community record
  • The reasonable preference of the child, if the court rules that the child is old enough to express a preference
  • The willingness and ability of each parent to encourage a close relationship between the child and the other parent
  • Whether domestic violence has occurred in or outside the child’s presence

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Legal custody may be awarded as sole custody or joint custody.

Sole custody means that one parent handles the primary decision-making.

Joint custody means that the parents share primary decision-making. It does not affect the amount of time the child spends with each parent. Joint custody does not eliminate the responsibility for child support, nor is it grounds for modifying a support order. Each parent is responsible for child support, based on the needs of the child and the resources of the parent. If, without support, a parent would be unable to afford adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for part of housing expenses, even when the child is not living in the home of the parent receiving support.

Custody Disputes
At the request of either parent, the court will consider joint custody. The court will determine if joint custody is in the best interest of the child, taking into account whether the parents can cooperate and agree on important decisions affecting the child’s welfare. If parents agree on joint custody, the court will award joint custody unless it finds clear and convincing evidence that the child’s welfare dictates otherwise.

Modifying Child Custody Orders
Child custody orders can be modified. The court will consider the time the child has lived in a stable custodial environment and what the judge feels is in the child’s best interest.

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