Key takeaways
- Many courts make custody decisions based on “the best interest of the child.”
- Typically, courts aim to give both parents equal parenting time or custody rights.
- Virtually any personal, professional or parenting matters can be used against you in a custody case.
- Unfavorable facts against you don’t have to be the end of your request for custody if you present those facts properly and make efforts to improve.
How to win a custody battle
One of the biggest stressors in a divorce where children are involved is the custody of their child. For some, it can feel more like a fight than a legal decision. The stakes are high in these situations, but when you know how to prepare for court or a settlement negotiation, the process can feel less daunting. There are no set “tricks” for how to win a custody battle as every case is individually assessed by the local court, but read on for a few things you can do to make your case appear more favorable to the courts if you’re fighting for full custody of your child.
How to get custody of a child
In general, many states award child custody according to “the best interest of the child.” This means that getting custody of your child boils down to how effectively you or your lawyer can argue that granting custody to you is in your child’s best interests. “Best interest of the child” is based on a number of factors, called “best interest factors.”
Best interest factors
States vary regarding what elements affect a child’s best interests, but best interest factors often include:
- What the child wants regarding custody and parenting time (depending on their age)
- Each parent’s ability to foster a relationship between the child and the other parent
- The quality of the relationship the child has with each parent
- Any explanations for a parent’s struggles
- How well the child has adjusted to their school, community and home
- The stability of each parent’s household
- Whether there is any history of violence or abuse in either parent’s household
- Each parent’s ability to be a parent
- The health of each parent
- Whether there is any history of substance abuse in either parent’s household
- The child’s age and vulnerabilities
- Each parent’s needs regarding work and childcare
- Each parent’s ability to cooperate with the other parent
Contrary to popular belief–many people seem to be under the impression that the courts prioritize mothers, and that custody courts are biased against fathers–sex is not taken into account when it comes to custody awards. Whether you’re the child’s mother or father has no bearing on whether you’ll get custody of your child.
How creating routines for your child can help
While custody is officially decided in the courtroom, it’s how you take care of your child beforehand that determines the final result. To decide who gets custody, judges look at patterns and the other parent have established, both with your child and each other. Having routines in place can help your custody case appear more favorable to a judge:
- Setting times for your child to complete their homework and chores, engage in extracurricular activities and go to bed
- Setting regular family time to check in with your child and play with them
- Staying on top of your child’s healthcare needs by setting regular appointments with providers and ensuring your child complies with treatment recommendations
- Keeping the lines of communication open with your child’s teachers and regularly attending parent-teacher conferences
- Knowing and encouraging your child’s age-appropriate interests
- Staying informed about who is in your child’s life and any problems they might be facing at school or with their friends or other family members
- Making adequate, permanent space for your child in your household
Pro tip: Getting along with your child’s other parent can help your custody case! Communicating regularly and proactively about their schedule is more appealing to a judge than a parent who tries to keep their child away from the other parent.
Communicate with the other parent without fighting
Family court judges across the country seek to foster relationships between a child and both parents, and they want the parents to follow suit. The way you talk to your child’s other parent may have a lot to do with how well your child can connect with them.
If you can prove that you’re able to communicate about your child with your child’s other parent and not cause turmoil, the court might be inclined to grant you more parenting time. Tactics to ensure peaceful conversation could include:
- Making an agreement to speak to each other only about your child and not about your past relationship with each other (especially in front of the child)
- Using a co-parenting app to coordinate childcare
- Exchanging your child in neutral locations such as the park or school
- Attending mediation when parenting disputes arise
- Avoiding clear conflict in front of your child, which could be distressing for them
Track your parenting progress
To win custody, you might have to give concrete proof that your actions are having a positive effect on your child’s life. Proof of your success as a parent and the good development of your child could include:
- Records of your child’s grades or positive evaluations from their teachers
- Testimony regarding your child’s positive behavioral changes
- Medical records regarding your child’s good health or improvements in health
- Testimony from your child or others regarding their happiness or well-adjusted nature
- Records of achievements your child has made in school or other activities (e.g., certificates of completion, certificates of commendation or trophies)
Collect evidence of the other parent’s concerning practices
While you don’t want to be combative and accusatory with the other parent, if there is a genuine issue, and you’re concerned about your child being around them, there are certain things you can do. Highlighting your worries about their parenting abilities might be crucial to your child’s well-being. Collecting and presenting this evidence may also be part of how to win full custody. Evidence of your concerns may include:
- Police records regarding abuse, violence or neglect
- Testimony about harmful parenting habits (e.g., unaddressed substance abuse, neglect or unreliability)
- Records from rehabilitation centers
- Healthcare records
- Copies of negative or abusive correspondence from the other parent
- Records from child welfare agencies
Pro tip: When your child’s other parent engages in harmful behavior, observe any changes in your child’s performance at school or extracurricular activities and their emotional state. Take note of whether any negative changes from your child coincide with the other parent’s negative behavior. Showing the court the cause and effect between the other parent’s bad habits and your child’s disposition could make your case for greater custody rights more persuasive.
What can be used against you in a custody battle?
Courts have a lot of discretion when making custody decisions, and seemingly innocuous facts may prevent you from receiving full or joint custody. Below are a handful of the types of facts that could affect your standing in a custody battle.
Family violence or abuse
If you have committed violence or have been abusive toward anyone in your household, that could be one of the biggest setbacks to your bid for custody. Even if you haven’t committed any type of abuse or domestic violence, a court might reduce your custody if someone else in your household (e.g., a sibling or new romantic partner) has committed domestic violence or abuse.
Prior intervention from a child protection agency or law enforcement
Every parent makes mistakes, and sometimes those mistakes trigger investigation or intervention from a local child protection agency or the police. If you have ever been investigated by a government agency regarding the way you care for your child, the court might shy away from granting you significant custody rights.
Someone in your household having a substance use disorder
If you or someone in your household struggles with a substance use disorder involving alcohol or drugs, a court might see that factor as a threat to your child’s stability.
Inability to effectively communicate or work with your spouse
Most courts seek to give both parents relatively equal parenting time and decision-making rights in family law cases. However, if you and your child’s other parent can’t speak to each other about your child without resorting to heated exchanges or if you refuse to agree on any parenting matters, a court may award a larger share of custody rights to one parent to avoid turmoil or impasses.
Living far away from your child’s school or community
Sometimes, a job, family obligations or your financial situation requires you to live far from where your child currently attends school or other activities. While the distance might not be your fault, the court may still take it into consideration. If you live far away and your child is stable in their current school or with the current friends or family members in their area, the court will likely not award you primary custody for fear of disrupting your child’s development.
A demanding work schedule
Parents can’t always balance their work lives and parenting obligations perfectly. If you support your family by working a job that demands a large share of your time and leaves little time for taking care of your child, the court might conclude that awarding you primary custody isn’t the best option.
Pro tip: Don’t let past mistakes or unfavorable circumstances prevent you from seeking custody rights, and don’t be afraid to ask for help from a legal professional. You can still win custody after making mistakes. And an attorney might be able to show you how to overcome adverse facts and maintain your custody rights.
How to address unfavorable facts
While the above factors may be obstacles to a custody award in your favor, they’re not absolute bars to your custody rights. You may be able to win a favorable result if you can prove you’re taking steps to improve, such as:
- Entering rehab
- Taking anger management courses
- Limiting or eliminating contact with individuals who pose a threat to your child
- Hiring help to reduce your scheduling conflicts
- Taking parenting classes
- Getting therapy
- Finding a new job or home
How an attorney can help
You may handle a custody case on your own, but many parents feel that attorney help can boost their standing in a family law case. If you choose to hire an attorney, they can help you gather evidence to prove your right to custody. An attorney can also present arguments on your behalf in court and connect you with other professionals (such as a doctor or child welfare expert) who may testify to strengthen your case.
Sources
https://casetext.com/statute/arkansas-code-of-1987/title-9-family-law/subtitle-2-domestic-relations/chapter-13-child-custody-and-visitation/subchapter-1-general-provisions/section-9-13-101-award-of-custody-definition; https://casetext.com/statute/colorado-revised-statutes/title-14-domestic-matters/dissolution-of-marriage-parental-responsibilities/article-10-uniform-dissolution-of-marriage-act/section-14-10-124-best-interests-of-the-child; https://iga.in.gov/laws/2020/ic/titles/31%2331-17-2-8&sa=D&source=docs&ust=1716656999606684&usg=AOvVaw0h1946FMTu7ioKTo_pnDMi; https://www.nycourts.gov/courthelp/family/bestInterest.shtml; http://benchbook.texaschildrenscommission.gov/pdf/Bench%20Book%202022%20Best%20Interest.pdf
https://www.ourfamilywizard.com
https://www.census.gov/content/dam/Census/library/publications/2016/demo/P60-255.pdf
https://guides.sll.texas.gov/divorce/finalizing; https://www.sb-court.org/self-help/family-law/dissolution-marriage-domestic-partnership
https://www.courts.state.co.us/Forms/PDF/JDF1.pdf; https://www.tarrantcountytx.gov/content/dam/main/district-clerk/Family_Filing_Fees.pdf; https://mncourts.gov/Help-Topics/Court-Fees/District-Court-Fees.aspx
