Custody is determined by whatever the judge feels is in the child(ren)'s best interest.[1] It's important to keep in mind that the court will almost always award some level of co-parenting. This means parents have to continue to collaborate after their case.
Physical & Legal Custody
There are two types of custody. Physical custody refers to who has possession of the child(ren). In other words, physical custody is the custody schedule. Legal custody refers to who makes important, long-term decisions regarding the child(ren), such as medical and educational decisions.[4] 50/50 joint legal custody is default, but the court can deviate from that if there are facts and circumstances to justify it.[5]
During a parent's custody time, that parent has the right to make day-to-day decisions that do not have a long-term impact on the child. This includes things like household rules, how to spend their time, and routine discipline.
No Order in Place
A common issue is where there is no custody order in place and one parent unilaterally decides to keep the child(ren). When no court order is in place, neither parent is allowed to abduct the child(ren) from the other. However, each parent has a superior right to the child(ren) over any third party, such as a school or daycare. This creates a situation where a parent can show up at the child's school, take them out of school, and keep the child away from the other parent.
One rule that is in place without a court order is that both parents are entitled to the child(ren)'s records, unless a court order says otherwise.[3] Generally, it's a good idea to get a court order, even if there are no disputes and the court order is by consent. Otherwise, either parent may unilaterally decide to keep the child(ren) after a future disagreement. You might wait months - depending on the how long it takes to get a hearing in your county - to get a court order that allows you to see your child(ren) again.
Best interests
The guiding North Star in custody cases is the child(ren)'s best interest. The court can consider any evidence it feels could have an impact on the child, but there are some common things to bring up. The court is required to consider any domestic violence and the child's safety.[2] Also, the court is required to consider joint custody if either parent requests it.[2] It's important to stay focused on the child(ren)'s best interest as opposed to what's fair to the parents. The following are some of the most common exhibits:
Photos showing that your house is clean and safe, you have a close relationship with the child(ren), and you take them places (doctor visits, recreation, etc.)
Any relevant domestic violence orders, evidence of violence in the other parent's home, or mental health issues that may put the child in danger.
School records, showing your ex does not take the child to school reliably or there is a correlation between the child's academics and the custody schedule.
Teachers can also be witnesses to testify to things like if a parent is not picking up the child on-time or if the child is often falling asleep in class on one parent's custody time.
A journal showing specific incidences where the other parent's parenting concerned you, including specific dates, times, and events.
Court records, such as any drug charges, driving while intoxicated, or anything showing a problem with violence or drugs.
Child's Preferences
The child's own custody preferences can be a factor if they have reached "the age of discretion".[6] This is not due to any right the child(ren) have in deciding who to spend time with, but because the child's preference may be based on their best interest.[7] The age of discretion is not a specific age. It's whenever that particular child is mature enough to have a rationalized opinion on their own best interest.[9] In practice, most judges and parents strongly prefer not to have the children testify, especially if they are under 14 years-old.
Outcomes
Judges often make complex decisions on custody claims. The parents may each have decision-making authority on different areas of the child(ren)'s lives. The custody schedule may be based on the parent's work schedule. However, there are some common outcomes we can use as common landmarks.
Full custody
Many parents tell their lawyer they want "full custody." It's extremely rare for a court to order that child(ren) cease having a relationship with the other parent. Getting full custody is basically a fantasy and discredits the parent.
Supervised Custody
Supervised custody is common when there is domestic violence, drug use, or something else that poses a potential danger to the child(ren). This is where a parent only gets to see the child(ren) with someone more responsible supervising them.
Primary custody
Primary custody is common if one parent is not suitable or responsible enough to care for child(ren), but may be responsible enough to see them for a couple days every other week. A pretty standard primary custody schedule is to pick up the child(ren) from school on Friday, and deliver them back to the primary custodian on Sunday, every other weekend.
An every other weekend schedule has been determined to be the constitutional minimum rights a parent has to be involved in the lives of their offspring, unless the parent engages in such behavior that demonstrates they waived their role as a parent. Primary physical custody often still has shared legal custody for decision-making. A parent is constitutionally entitled to visitation with their child, unless they have demonstrated some conduct that abandons that right and shows it is not in the child(ren)'s best interest to see them.[8]
Shared custody
Shared 50/50 custody is the most common custody arrangement. You can think of this as a common default when there are no severe parenting issues. The standard custody arrangement is alternating weeks, though more complicated schedules are also common, to accommodate work schedules and other issues. In a shared 50/50 custody, usually both parents have an equal say in decision-making and must reach a consensus.