Child custody is one of the most important determinations that a court often has to make in connection with family law issues. Child custody laws can be complex, and state laws on the subject can vary by jurisdiction. Determining custody rights over a child or children must be done carefully, as such decisions can have profound impacts on the child that last for long periods of time. 

When determining child custody rights, child custody law actually places the child’s interests and background first before any of the parent’s personal preferences. This is known as the child’s best interest standard, which is the main standard for child custody cases. This means that courts will only make child custody decisions if they benefit the child. 

Thus, if a parent is considering how to get custody of a child, or how to become a custodial parent, they must prioritize the child’s best interests, as this is what the courts will do during the custody hearings. Custody of a child is an important determination, and the more that the parents understand about child custody rights, the more efficient the process will be.

What are the Factors to Consider for Child Custody?

When determining child custody in a family court setting, courts will consider a wide range of factors that might affect the child’s well being. These factors of course will be balanced against the child’s best interest standard, to ensure that the custody decisions do not harm or negatively affect the child or children in any way. 

Some common child custody factors used by courts in a divorce or legal separation context may include:

  • Each parent’s relationship and history of interactions with the child;
  • Whether one parent has been the primary caretaker of the child;
  • The child’s background and adjustment to their home, school, and neighborhood;
  • The mental and physical health of the child, as well as the parents;
  • Whether the child has any specific health, medical, or psychological/emotional needs;
  • The wishes of the parents (if both parents agree to a particular custody arrangement, the court will usually choose that arrangement);
  • The child’s wishes (if the parents cannot agree on a custody arrangement, the courts will give strong weight to the child’s preferences);
  • The overall preferences of the child, especially if they are above a certain age (this age may vary by state).

So, for instance, if the child has special medical needs, the court will factor this into their determination with regard to custody. It may be the case that one parent might be more familiar with the child’s special needs, and thus may be granted more custody rights than the other parent. 

What are the Factors That Courts Cannot Use to Decide Child Custody?

In determining child custody, there are also certain factors that the courts simply cannot use. These may be due to other related laws, such as discrimination laws, that interact with child custody laws and must be followed. Some factors that courts can’t use in a custody determination include:

  • Race: Courts generally cannot form a custody determination based on whether one parent is of a certain race, or if they are dating a person of a certain race. Racial background is generally not used in custody decisions, unless it can be shown that a consideration of race would benefit the child; 
  • Religion: Courts are typically not allowed to base child custody arrangements on religious issues or preferences. There may however be exceptions in cases where the child is being harmed or placed in danger by specific religious practices; 
  • Gender: Traditionally, family courts automatically awarded child custody (or a majority of the custody) to the mother, as it was assumed that the mother was the primary caretaker for children. However, this has changed in recent times, and courts now focus on a broader set of factors to determine child custody and custodial parent arrangements; 
  • Disability: Just because a parent has a legally-recognized disability does not automatically prevent them from obtaining child custody. Instead, courts will look to whether the disability would prevent the child from performing their parental duties if they were granted custody.

Are Courts More Likely to Award Child Custody to the Mother?

As mentioned, courts in the past were more likely to automatically assign custody or a  majority of the custody rights to the mother. It was presumed that the mother would be more suited to caretaking of the children. This was often based on societal notions and stereotypes that existed in previous decades.

However, these archaic notions have largely been rejected by courts in all jurisdictions. Instead, the individual parent’s custody rights will be examined in great detail on a case-by-case basis. What this means is that courts will look at each individual custody case to determine the ideal arrangement, again based on the best interests of the child (not necessarily on preconceived notions about which gender can raise a child more effectively). 

You can learn more about it here on our page about Mother’s Rights to Child Custody.

Child Custody for Fathers: How can a Father Get Full Custody of His Child?

When it comes to father custody rights, various questions can arise. For instance, the father of a child may have questions like: 

  • Can a father take a child away from the mother?
  • What are the chances of a father getting full custody of their child?
  • How does a father get full custody of a child?
  • Can a father take his child? 
  • How can a father get custody of their child or children?
  • How does a father get full custody?


You can read more about this here, on our page about Father’s Rights to Child Custody.

What are Child Custody Agreements?

During the course of the child custody proceedings, the court will arrive at a formal child custody agreement. The agreement outlines various guidelines for the custody arrangement, including which parent has primary custody, whether any visitation is involved, and other matters. 

As stated, if the parents can create an agreement on their own, the courts will usually honor whatever arrangement the parents arrived at, so long as it is in the child’s best interests. If they can’t create one on their own, the court may need to intervene to help the parties arrive at a suitable arrangement. 

Custody agreements are very important for the safety and well-being of the child. For instance, if there is no custody agreement in place yet, and the father took the child without the mother’s knowing or without their permission, it can be difficult to determine whether any violations have occurred. Similarly, if there is no agreement in place and the mother takes the child, courts will need to evaluate the overall situation to see if any custody rights have been violated. 

If you have more questions, then you go on to read more about Child Custody Agreements

Can You Take Your Child If There is No Custody Order in Place?

A common situation is where one parent takes the child away because there is no child custody order yet in place. This can create situations that are very confusing and complicated, and can sometimes end up in a violation.

If there is no custody order in place, it is generally recommended that a parent consult with the courts first to gather more information on their rights. It is usually not recommended to attempt to remove the child from their current situation. If there is a safety or health concern, the parent should contact the proper authorities first, such as child protective services.

Regarding child custody rights if there is no custody order in place, courts usually go by the following guidelines:

  • If the parents are married, and there is no custody order in place, both parents usually have equal rights to custody;
  • If the parents are divorced, the divorce order should say what the custody arrangement is. The most recent divorce order should be used;
  • If the parents are unmarried and were never married, and no custody order is in place, some courts might grant custody fully to the mother (though this might vary by state and jurisdiction). 

What Can a Father Do If the Mother Keeps Their Child From Him?

In some cases, a mother may seek to keep the child away from the father. This can happen for various reasons which may be valid, including safety reasons, or if there is a situation involving abuse. In some cases, it can happen for purely personal reasons, such as when the mother simply wants to deny the father custody just to punish them. 

Generally speaking, the mother cannot keep the child away from the father if doing so violates their rights. If there is a custody agreement or court order in place, the mother cannot keep the child from the father in a way that violates the agreement or order. 

What they should do instead is consult with the court to seek a custody modification. This will help to create new terms for the custody agreement that will be enforceable in the future. 

Similarly, the mother cannot take the child from the father’s custody without their permission if it would violate a custody order, or if it would violate their parental rights absent a court order.

An exception here is in cases where the child is in immediate danger from the father. In such cases, the mother may wish to seek a child protection order that legally requires the father to stay away from the child.

If you are the father of the child, and the child’s mother has taken the child in a way that is illegal or violates a custody order, you may need to contact the court or the proper authorities to ensure that the child’s safety is intact.  

Can a Father Fight for Child Custody If He Is Not on the Birth Certificate?

Whether or not a father’s name is listed on a birth certificate can have significant impacts on their custody rights. In most cases, if the person’s name is listed as the child’s father on their birth certificate, courts will automatically conclude that they are the child’s legal father. They will then be granted various custody rights as the legal father of the child. 



To learn more about this, read about Child Custody Rights Between Unmarried Parents.

Do I Need a Lawyer if I Am a Parent Dealing with Child Custody Issues?

Child custody laws are important as they can affect the child’s life for many years to come. If you need help with any of the custody laws in your area, you may need to hire a local child custody lawyer. A lawyer in your area can help you with your case and can research the laws to determine what your custody rights are as a parent.