What is Child Custody?

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What is child custody?

Child custody is who takes care of or makes decisions about a child. There are two kinds of custody:

  • Legal custody, and
  • Residential custody.

Legal custody refers to a parent's legal right to take part in decisions about the child's health care, education, and other important decisions.

Residential custody refers to which parent the child will live with most of the time.

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Which parent gets legal custody?

In almost all cases, the court gives legal custody to both parents. It is called joint custody. When only one parent gets legal custody, it's called sole custody.

Sole custody orders are very unusual. The court may order sole custody if, for example, the other parent:

  • Has drug or alcohol problems, or
  • Cannot be found.

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If there is joint legal custody, which parent gets residential custody?

It depends on many factors, including:

  • How old the child is,
  • If the child is a girl or boy,
  • The parents' and child's mental and physical health,
  • What the parents want, and what the child wants, especially if the child is 14 or older,
  • The relationships and behaviors in each parent's household, including any domestic violence, and
  • The impact of any changes to the child's home, school, or community.

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What if the child has been living with someone besides the parents?

If someone other than the parent has cared for a young child for 6 months or more, the court may consider giving that person custody. It is very unusual for a court to give custody to someone who is not the child's parent. (The legal term for that person is de facto custodian.)

Talk to a lawyer right away if:

  • You are asking to have custody of someone else's child, or
  • Someone is asking for custody of your child.

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Can parents with joint legal custody share residential custody?

Yes, but many judges think it's not good for children to move between their parents' homes frequently. In most cases where the parents share joint legal custody, one parent gets primary residential custody. The child lives with that person, and the other parent gets visitation.

For more information on visitation, see: Visitation.

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Does the court favor the mother or the father when deciding custody?

No. The mother and the father have equal rights to custody even if they are not married. But the court will consider any previous orders in their case.

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What if I am not married to the child's other parent?

It does not matter to the court if the parents are married. The court always makes decisions based on what is in the child's best interests. 

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What if the man says he is not the father?

If you are not married and the man says he is not the father, the court will order DNA testing. (This is called establishing paternity.)

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What if I am married, but I am not the father of a child born during that marriage?

The law assumes that you are the father of the children born during your marriage. If you can prove that you are not (by DNA testing), you may not have to pay child support. Proving you are not the father also means you would not have custody or visitation rights. Talk to a lawyer right away.

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If the man says he is the father, does there have to be DNA testing?

If the man and the mother agree that he is the father, the court can make orders without DNA testing, unless another man also claims to be the father.

If the mother does not agree that you are the father, you must do DNA testing to prove you are the father of the child.

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What if I want to prove I am the father so I can spend time with my child?

If the mother does not agree that you are the father, you must get court orders. First, you have to do DNA testing to show you are the father. Once you prove that you are the father (called establishing paternity), you can ask for custody, visitation, and other orders.

Note: If you do the DNA testing as part of a child support case, it may cost less.

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If the other parent and I have already worked out custody, do we need a court order?

Yes, even if you and the other parent agree about custody, it is best to get a court order. It is important to ask for an order because your relationship with the other parent may change. And unless you have a court order, your agreement will be difficult to enforce.

If you do not have custody orders and the other parent takes the child and refuses to return the child, you may have to go to court to get the child back. It does not matter if you were married to the other person or not.

If you have a case in family court now (divorce, support, etc.), you can ask the court to make orders that reflect your agreement. If you already filed for divorce (or legal separation), you can ask for a custody order as part of your case.

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Reviewed August 2009