Last Updated on: 23rd June 2025, 11:51 pm

Making the decision to divorce rarely comes easily to any couple, and it’s especially difficult when there are children involved. Parents love their kids, and they want the best for them. It’s also human nature to want the best for yourself, which is why family law attorneys hear the question, “Who gets the kids in the divorce,” more than any other question.

Understanding Child Custody Decisions

The first thing to remember is kids are not possessions. They are people, and they have feelings. They’re not pawns designed to cause harm to your partner when you want to hurt them in a divorce. Who gets the kids in a divorce is a loaded question, and it’s not one with a simple answer. However, we start by admonishing any parents using their kids for cruel intentions to think twice.

For most divorce cases, the parents make the decision who gets custody. Family court prefers families come up with their own custody agreement without seeing a judge. The purpose of this is to get parents talking, to come up with an agreement that works well with everyone, and to show support for co-parenting. Just because your divorce is ongoing doesn’t mean you can’t remain cordial with one another for the sake of your kids.

When Parents Cannot Agree

Mediation might be the next step if you cannot seem to come up with a solution that works well for both of you. If you fail to make any progress during mediation, your attorney will recommend you see a judge. Be warned that judges look deep into your life to educate themselves and make the best decisions, and it might not be one either of you is happy with. If you see a judge, he or she considers several factors.

What are the Child’s Best Interests?

Kids are all different, and so are parents. When determining which parent gets custody of the kids in the divorce, a judge looks for the child’s best interest. For example, a child who would have to move from his childhood home to another state to live with one parent probably doesn’t need all that change at this point. A child with special needs probably needs to be with the parent who is more capable of caring for said needs. The factors judges take into consideration are individual, and no two cases are the same.

In Cases of Abuse or Addiction

If one parent has a history of abuse or addiction that’s proven in court, the other parent tends to get custody of this kids. Typically, the clean parents without abuse or addiction issues is given primary physical custody, and the other parent is granted some sort of supervised visitation. In cases where there is abuse, most judges consider not allowing the abusive parent near the children.

Older Children and Their Preferences

If your kids are old enough to make their own decision, the judge takes that into consideration. Your child might then choose which of you he or she prefers to live with full-time, and that decision isn’t always one you want to hear. Judges do consider other factors, too. Kids aren’t always known for making the most educated decisions regarding things of this nature. The judge will take his or her desires into consideration, and use that to help make his final decision.

Who Provides the Better Home?

Some people think having the bigger home or making the most money is what makes them a better parent. This is not true. The judge wants to know who is going to provide the most care for the child, and this includes which parent is more likely to allow extended family from both sides to visit with the children. The better home is the one with a more stable environment. Mom might make more money but if she travels most of the week every week, the kids are probably going to live with dad most of the time because he’s home more often. The better home is one in which the kids thrive most, and where they receive the most comprehensive care.

It’s your choice who gets custody of the kids, but you have to make the decision. If you’re unable to do that, the process is dragged out, it’s made longer and more tedious, and the result is not always what you wanted from the start.

Divorce Court Hearings: What to Expect

For your divorce, you might have more than one visit to the court house, but you’ll have at least one. Some divorces are quick and tidy. The participants agree on everything and the case proceeds amicably. They will still have to stand in front of a judge and tell him or her everything that was agreed upon prior to the hearing itself. There could be continued court hearings after the first even if they agreed on everything.

What to Expect at the First Hearing

Uncontested Divorce

The court will mail a notice about the first hearing. It’ll include date, time and the courtroom where your case will be heard. The spouse who filed for the divorce has to be in the courtroom, but the other spouse isn’t required to be there.

When a divorce is uncontested and the spouses agree on everything, the court will still have questions, and there are procedures to be followed. You’ll be asked your name and address as well as details about your marriage. The judge will ask for a copy of your marriage certificate and verify the date of the marriage. The judge will ask how long you’ve been living apart and whether there are assets or real property to be determined.

The judge might determine that the splitting of assets, child support amounts or visitation agreements don’t meet with his or her approval. She might decide to schedule another hearing and issue a temporary order.

Temporary Order

The judge may issue a temporary order in the first hearing regarding custody, child support or visitation for the children. She might force the spouses to disclose assets and provide temporary spousal support. There’s no way to appeal temporary orders.

What to Expect at Subsequent Hearings

There could be many court appearances required as the divorce progresses. It depends on how contested they are. The judge might need to see more evidence, circumstances change or child support wasn’t paid. Numerous court appearances mean a divorce can continue for years since it might be months before the judge can find space on her calendar for the hearing.

Mediation as an Alternative

Instead of seeing you and your spouse for many hearings, the judge might order you to attend mediation. This will help the two parties agree on issues like child custody or visitation. The mediator is a trained professional who will remain neutral. This person doesn’t make decision or recommend anything to the judge. Mediation is meant to facilitate conversation between the spouses in a neutral environment.

There might be only one hearing in front of a judge regarding your divorce if both parties agree on everything. If there’s a disagreement about any parts of the divorce, there will be more than one hearing.

Key Factors Courts Consider in Child Custody

The “best interests of the child” standard is a legal guideline that places a child’s well-being at the forefront of any decision-making process in family court. Courts consider multiple factors when determining custody:

• Primary caregiver history – Who has been the main caretaker of the child
• Parental stability – Mental, emotional, and financial stability of each parent
• Home environment – Safety, cleanliness, and stability of each parent’s home
• Child’s relationships – Bond with each parent and siblings
• Parent cooperation – Willingness to encourage relationship with other parent
• Special needs – Ability to meet any special requirements of the child
• Substance abuse issues – Any history of drug or alcohol problems
• Domestic violence – History of abuse toward spouse or children

Court Procedures for Different Divorce Types

An uncontested divorce is one where the spouse agrees with all parts of the divorce. The participants agree on everything and the case proceeds amicably. In contrast, a contested divorce is when your spouse disagrees with anything in the case, including the divorce itself, the property division, child custody, or financial support.

The basic procedures differ significantly:

• Uncontested divorces – You never have to appear in person in court. You simply submit a packet of documents to the court.
• Contested divorces – You’ll have to appear in court many times, usually for an entire morning or afternoon, and always in the middle of a weekday/workday.

Impact of Court Decisions

A parent’s behavior in court will play a significant factor in determining custody. Being argumentative or expressing hostility towards the other parent will be noticed by the judge. Likewise, being reasonable, cooperative and respectful towards the court will help. In court behavior alone will not determine custody, but it can certainly help tip the odds one way or the other, and should not be ignored.

Remember these key points:

• The court’s primary concern is the welfare of the child
• Judges look at the totality of circumstances, not just one factor
• Parents who cooperate and communicate effectively are viewed more favorably
• The process takes time – be patient and prepared for multiple hearings if needed

Making custody decisions during divorce is never easy, but understanding the process and what courts consider can help you prepare effectively. Always remember that the focus should be on what’s best for your children, not on winning against your spouse.