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Who receives custody of the children when a divorce happens?

There are many ways custody can be decided in a divorce. Generally speaking, both parents have an equal right to custody. It’s important that both parents understand what custody is, precisely, before deciding who gets custody.

Physical and Legal

There are two kinds of custody: physical and legal. Physical custody is residential custody, or where the children live. Legal is the power to make major decisions regarding the children, such as healthcare, religion, or education.

Physical and legal custody can be ordered differently. For example, the mother can have sole physical custody, which means the children live with her, while the mother and father have joint legal custody, which means they must agree on all the major decisions. These orders can be in any combination, including one parent having sole physical and sole legal custody.

Once you understand the way custody can be ordered, let’s look at how it can be decided.

Parents can decide

If the divorcing couple is able to agree on things, they may be able to discuss and come to an agreement regarding child custody. If they can, in most cases, a judge will incorporate their agreement into the final divorce decree. This is typically the easiest, and fastest, way to resolve custody.


If the parents are not able to agree, they can choose (or some states may order them) to go to mediation. In mediation, a neutral third party will help them try to find a compromise. The mediator will not usually make recommendations, but will help the couple consider the factors that affect custody to see if they can come to an agreement. If they can, this agreement will then be presented to the judge, and be incorporated into the divorce decree.

Guardian ad Litem

In particularly contentious cases, or in which both parents are very determined to have custody, a Guardian ad Litem can be appointed for the child(ren). A Guardian ad Litem is usually an attorney, and they represent the child. They’ll look at things like the home environment, the relationships the child has with each parent, parental incomes, the willingness of each parent to foster a relationship between the child and the other parent, and other factors to determine the best option for the child. This recommendation is then presented to the court, where the parents can disagree with it, but a judge will make a final decision.

The Judge Decides

When all else fails, or after a Guardian ad Litem has made a recommendation, a judge looks at “the best interests of the children” to decide where the children should live. He’ll look at parental incomes, who the primary caretaker was, and many other factors to decide, and his decision will be put in the divorce decree.

Unless the parents are able to agree on custody, most will find it helpful to hire a lawyer to help navigate the process and ensure that their interests are fully represented and heard by the court.

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