The Post-Divorce-Parenting Glossary

Divorced-Parenting Term

Child Custody Cases

What are child custody cases?

A child custody case is a dispute between two or more people regarding who and how the care for a child should be handled.  Child custody cases during divorce or separation can be settled by mediating or by litigating, and each method has its own pros and cons.  Child custody cases seek to determine an acceptable outcome for two components of child custody: 1) physical custody and 2) legal custody.  There are several different possible outcomes and custody schedules that can result from how a custody case is decided.  Both physical and legal custody can be joint or sole, which means there can be joint physical custody or sole physical custody.  There can also be joint legal custody and sole legal custody.  Furthermore, visitation or parenting time schedules can be quite diverse because of all of the other complexities in the parenting lifestyles, such as long-distance parenting, special needs, co-parenting, blended families, and other types of post-divorce parenting relationships or issues.

What is legal and physical custody in a child custody case?

The two components of child custody are legal and physical custody. Legal custody refers to who will make important decisions regarding the development of the child.  Such decisions involve choices about health, education, emergency care, spiritual practices, extracurricular activities, and other aspects of the child's life. Physical custody refers to who the child will live with and spend time with. This will include who the child spends weekdays, weekends, holidays, summers, etc  as well as who will be responsible for supervising daily activities and the like.

A simple way to understand what types of decisions fall under the domain of physical custody versus legal custody is to apply a thought experiment or test called the babysitter test.  Basically, if a babysitter would be appropriate in making a decision on behalf of a child, that decision likely falls under the domain of physical custody.  These decisions tend to answer questions like what clothes to wear, what time to go to bed, and whether or not to watch TV.  These are short-term, day-to-day decisions.

Conversely, decisions like what religion to follow would be inappropriate for a babysitter to make and fall under the realm of legal custody.

What factors do courts use to decide child custody cases?

Legal decisions in child custody cases are often based on a comprehensive evaluation of custody options in order to determine the best situation for the child. The family court system will often take into account the following factors when evaluating custody suitability:


  • Past parenting history and past parental involvement
  • The age of the child
  • The gender of the child
  • The mental, psychological, and social development of the child
  • The mental and emotional status of the parents
  • The location of each parent
  • Household stability
  • Any history of abuse or similar risks
  • The best interests of the child

In some child custody cases, this information will be evaluated by a psychologist who will then make recommendations to the court. Children may also testify in child custody cases.  In most states children of any age can testify, though discretion is applied in child custody cases when the child is seven or younger.

How can a parent win a child custody case?

Parents who hope to win child custody should first become familiar with the child custody laws in their jurisdiction and prepare to show themselves in court to be the better parent. It's also important to realize that the court's singular goal is the best interests of the child, which may or may not include a ruling of sole custody.

Become familiar with state child custody laws
One of the first tasks a divorcing or separating parent should do before getting into issues related to the child custody case, is to become familiar with the child custody laws in the state or jurisdiction where the case is being heard.  Every state is different, and it is very complicated to understand how different states will interpret child custody issues; however, there are some common elements to every child custody case, and those are what we will discuss.

Be prepared to show you are the better parent
The challenge is that this must be done without slamming the other parent.  Courts will look at how much time each parent is able to spend with the children and what unique values each parent has to offer the children if given custody.  The court will evaluate custody decisions within the framework of the best interest of the child standard.

To do this, it is important to focus on both the physical and psychological well-being of the child. The child's physical well-being includes showing how a parent plans to handle the child's routine, including his or her eating schedule, sleeping schedule, extracurricular activities and so on.  Promoting a healthy and active lifestyle for the children is important.

The child's psychological well-being includes showing how the child's relationship with the other parent will be kept up and promoted, how having custody will align with the child's wishes, and how having custody will help the children adjust better to the divorce or separation.  Understand that there is a much higher burden of proof if attempting to get sole custody rather than joint custody.

Know what it is you hope to "win"
Many divorced parents think they want sole custody when they first divorce, but often sole custody is not understood and may not be the best option.  Sole custody does not mean that the other parent doesn't get to see the children, and it doesn't mean they don't get to make parenting decisions about the child.  Typically if one parent has sole custody, the other has visitation and joint legal custody.  This means that the noncustodial parent gets to see their children often, and they also have an equal say in all long-term parental decisions, such as religion, schooling, and medical care.

We mention this because fighting for sole physical custody might not be a custody battle worth pursuing.  There is a much higher burden of proving the "better parent standard" when attempting to get sole custody than there is if attempting to get joint custody, and this will therefore lead to more of a financial impact in litigation fees.  It also often results in high-conflict parenting issues because one parent feels like the "loser" in the child custody case.

Understand the best interest doctrine
During most of the 20th century, family courts based child custody cases on the tender years doctrine, which meant the mother almost always was awarded custody.  Today, the tender years doctrine is no longer used; it has been replaced by the best interest standard.  The best interest standard evaluates child custody without the assumption that gender plays a part.  Courts will evaluate the character of each parent, the relationships of each parent, and legal issues that a parent might have, any history of abuse, as well as several other factors.

Even though gender is not a consideration, women do still tend to get custody more than men for a variety of reasons.  One reason is simply that men do not choose to fight for custody as often as women do.  In fact, when divorcing parents mediate the terms of their child custody case, the father allows the mother to have sole custody over 60% of the time, while he attempts to get sole custody only 6% of the time.1  This may be an indication that men are not aware of a father's rights versus a mother's rights.  They may simply assume that they will not get custody, and therefore will forfeit custody during mediation.

If the case goes to court, the mother is still more likely to get sole custody than the father, but the margin is less.  The reason for this tends to be that fathers are less able to show judges that they fit their views of the better parent standard than mothers.  They tend to have less time to devote to the children, are more career oriented, and often aren't as organized with their knowledge of the children's needs as the mother is.

Another reason that mothers tend to win more child custody cases than men is that women are ore likely to initiate the divorce than the father.  Women initiate more than two-thirds of the divorces, which means they have a significant legal head start over fathers in winning the child custody case.

What is a parenting plan and its benefits in a child custody case?

Parents will always have the option of working out a parenting plan together, which will be approved by the court if deemed fair and appropriate. When the terms of child custody cases are contested it is especially important to seek the services of a qualified attorney who can protect and maximize your legal rights. In all child custody cases the judge will have the authority to make the final decision.

A parenting plan that evolves over time to meet the natural changes that occur within a family as children get older can help improve consistency and overall communication between two different households.  Thinking through issues ahead of time can do a lot to prevent a stressful issue from resulting in unnecessary conflict.  Parenting plans do a good job of helping parents create a template of how issues to come will be addressed. 

How can the cost of child custody cases be made less expensive?

The most direct correlation to the cost of child custody cases is conflict.  The higher the conflict level between parents in a child custody case, the higher the cost of getting the case resolved.  High conflict levels lead to prolonged litigation, second and third rounds of litigation, and negative psychological effects on the children.  Therefore, the best way to lower the overall cost associated with a child custody case is to lower the conflict.

Divorce and child custody issues are a breeding ground for conflict, so finding ways to minimize or eliminate it is no easy task.  If dealing with a high-conflict ex, the following are some ways that might help to lower that conflict.

Reduce contact and verbal communication
If a person has certain triggers that lead to battles, avoid those triggers.  Most high-conflict personalities love to argue, and verbal battles are the primary medium for doing it.  Insist that all conversations will be done electronically via email, text message, or online divorce software.  This will not only reduce arguments, but it will provide a way to track what was and was not said.

If mediation fails, use divorce arbitration before litgation
Litigation is the dispute resolution method that leads to the the highest level of post-divorce conflict and expense.  Not only are the two parties thrust into a contentious legal environment, but two lawyers are being paid to essentially wait in courtrooms for cases to be called before a judge.

If divorcing parents are unable to mediate their differences, divorce arbitration provides a much more convenient and much less expensive way of resolving the dispute.  Essentially, a divorce arbitrator is a mutually hired judge that will decide the case.  There are certain pros and cons to arbitration, but cost savings is one of the big advantages.

Vent feelings to someone else not the other parent
A sure way to keep conflict going is to let them know they are getting to you.  If you feel angry about something caused by a high-conflict personality ex, don't let them know it.  Instead, find a friend, a therapist, or use exercise to vent your anger.  Engaging the other parent will only breed more conflict.

In addition, never send a hostile email or text message to the ex.  While you want to save anything hostile that your ex has sent to you, you do not want to make the same mistake and have what you wrote used against you in family court.

Avoid validating their arguments
Keep in mind that a high-conflict person is not someone with a normal personality, and therefore taking ownership of mistakes you might have made will likely backfire.  Apologizing for most mistakes one makes in life is a sign of a normal and respectable person; however, if your ex is a true high-conflict personality, they will twist an apology into a validation that they are right and you are wrong.  Most apologies should be reciprocated you apologize for your wrongs, they apologize for their wrongs, then you both move on.  A high-conflict personality does not reciprocate an apology.

Become a parallel parent
Parallel parenting is a framework for divorced parenting where parents are experiencing too much conflict to co-parent.  In fact, co-parenting with a high-conflict personality is a bad idea, simply because of the level of communication needed to co-parent.  Parallel parenting sets boundaries for divorced parents to be able to raise their children their own way, without interference from the other parent.



1. "Divorce Peers." Divorce Peers. N.p., n.d. Web. 13 Nov. 2013.

How to win a child custody case
Food for thought on winning a child custody battle.
32 child custody tips
This is for California child custody cased, but the tips likely apply to most locations.

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