By Jeff Atkinson



Jeff Atkinson

The law in the United States regarding custody of children following divorce is governed by the states rather than the federal government. Thus, each of the 50 states and the District of Columbia (the capital city) has its own law. The laws of states are similar in most respects.

Child custody following divorce of the parents is to be decided according to the best interests of the child. The law directs that mothers and fathers be treated equally. Neither parent has an automatic preference for custody of children based on the sex of the parent. Up until the 1960s or 1970s, most states applied the “Tender Years Doctrine” by which mothers were automatically entitled to custody as long as the mother was fit. Following that time, principles of equality grew in the United States both with regard to divorce disputes and in the work place.

When custody of children is being decided the main options are “joint custody” (also referred to as “shared custody”) and “sole custody” with rights of visitation.

Joint custody

The concept of joint custody developed in the 1970s (at approximately the same time the law provided for equal treatment for mothers and fathers). Joint custody has two parts. One part – referred to as “joint legal custody” – provides for equal rights of each parent to make major decisions regarding the child. The major decisions include the child’s education, health care, and religious training, and the decisions also may include other matters such as extra-curricular activities in which the child will participate, and the age at which the child will date or drive.  With joint legal custody, the parents are directed to work together to come to common decisions. If the parents cannot agree, a court may select one parent to make the decision (although even if parents disagree about religion, each parent has a right to expose the child to his or her religious beliefs as long as the child is not being harmed).

The second part of joint custody is “joint physical custody,” which refers to the amount of time the child spends with each parent. Joint physical custody means the child will spend a substantial amount of time with each parent. The time might be equal, but it does not have to be equal. One example of an equal time-sharing arrangement would be the child alternating weeks between the parents. Another example would be two days with the first parent; two days with the second parent; five days with the first parent; five days with the second parent; and then the cycle repeats. In order for equal time-sharing to work, the parents generally must live near each other. A cooperative attitude between the parents also is very helpful.

All states provide for joint custody as an option for raising a child. In some states, there is a legal presumption for joint custody, which means the court is supposed to order joint custody unless the parties agree otherwise or unless there is evidence that joint custody is not in the best interests of the child.

Sole custody

The second option for raising children after divorce is sole custody. Sole custody means the child spends the majority of his or her time with one parent and that parent is entitled to make major decisions for the child, including education and health care. The other parent is entitled to spend time with the child. That time is often referred to as “visitation.”

Some parents and lawmakers have objected to the terminology used in divorce disputes. The term “custody” has connotations of a dispute over possession of a piece of property rather than the opportunity to raise a child. In addition, in the United States, the term “visitation” is the same term used to describe limited access to a person who is in prison. Given the objection to the traditional terminology, the laws of some states now refer to the time each parent spends with the child as “parenting time” rather than as “sole custody” and “visitation.”

Under a sole custody and visitation arrangement, a common amount of time for the non-custodial parent (the parent without sole custody) and the child to spend together is:

–  every other weekend (often Friday evening through Sunday evening);

–  one weeknight evening (usually including dinner);

–  half of major holidays;

–  several weeks in the summer.

Under U.S. law, the noncustodial parent is entitled to visitation (or parenting time) with the child unless it is shown that harm will be caused to the child by the contact. The United States Supreme Court (the nation’s highest court) has declared that under the federal constitution, there is a “fundamental liberty interest of natural parents in the care, custody, and management of their child.” The Court said it is “an interest far more precious than any property right.” In addition, many studies by social scientists and mental health professionals in the U.S. have shown that children do best when raised by two actively involved parents (at least as long as the parents are not fighting constantly).

In order to deny a parent contact with his or her child, extraordinary circumstances must be shown, such as abuse of the child or major mental illness of the parent. Even if a parent has engaged in abuse of the child or has a significant mental illness, a court might allow contact between the child and parent under supervision.

Factors in deciding custody

More than 90 percent of child custody cases are settled by the parents by agreement. The parents, with or without representation by attorneys, come to court and a judge enters an order reflecting the parents’ agreement. If the parents cannot agree on custody and a judge must decide the issue, the judge considers many factors.

One of the most important factors is whether one parent has been the primary caretaker of the child. If one parent has been the primary caretaker – much more responsible than the other parent for the day-to-day raising of the child – that is a significant factor in granting primary custody to that parent. This factor is particularly important if the child is young. It is less important as the child grows older. The factor also is less important if both parents have been actively involved in raising the child.

Courts also will try to determine the parent with whom the child feels a closer bond and which parent can better meet the child’s needs. Evidence on this issue may come from the parents’ testimony as well as testimony by friends, neighbors, the child’s teachers, and mental health professionals who have evaluated the case.

In some cases, a judge may talk to the child out of the presence of the parents to determine the child’s feelings about each parent and if the child has any preferences he or she would like to express. The weight the judge gives the child’s preferences will vary with the child’s age, maturity, and quality of reasons for preferences.

As stated earlier, judges are supposed to decide custody cases based on the best interests of the child and the facts of each case without any preference given to a parent on the basis of his or her sex. Some judges, however, may have a bias for a parent based on sex. For example, some judges may believe that mothers are inherently more suited to raising children, or perhaps that fathers are more suited to raising older boys. If such bias is shown in the record of the case, a higher court may reverse the decision.

In one case, for example, a trial judge gave custody of two boys, ages 9 and 11, to the father, saying the father “will be able to engage in various activities with the boys, such as athletic events, fishing, hunting, mechanical training, and other activities boys are interested in.” The record of the case, however, did not show that the boys were interested in hunting or mechanical training or that the father’s skills in the areas listed by the judge were superior to the mother’s skills in those areas. In fact, the mother took the boys fishing more often than the father did. The state supreme court reversed the trial judge’s decision and gave custody to the mother, noting that she had been the primary caretaker for the boys for most of their lives and was more involved in the boys’ school activities.

Modification of custody

Custody decisions can be modified. If parents agree to modify custody, U.S. courts almost always will enter an order reflecting the agreement. Some parents will modify custody on their own without going to court.

If one parent wants to modify custody (such as to become the primary custodian of the child) but the other parent does not agree, courts seek to balance competing interests of doing what is best for a child with promoting continuity in the child’s life, and avoiding the stress and cost of litigation. Modification of custody in a contested case generally requires proof of two things: (1) that there has been a substantial change of circumstances since the prior custody order, and (2) that it is in the child’s best interests to modify custody.

Examples of circumstances in which custody might be modified include: an older child’s  significant (and well-based) preference to live with the noncustodial parent; a child’s ongoing conflict with a hostile stepparent; or a custodial parent’s plan to move to a distant state when the child has strong ties to his or her school, community, and noncustodial parent.

Children born out of wedlock

The principles for deciding child custody in connection with divorce also apply to deciding custody of children who were born out of wedlock. For those principles to apply, however, paternity of the child first must be established – either by agreement of the parties (such as having the father’s name placed on the child’s birth certificate) or by a court determination of paternity. Until paternity is established, the mother is automatically entitled to custody.

Once paternity is established, a court will decide custody according to the best interests of the child. Among the factors a court will consider are the benefits of having a nursing infant in the custody of its mother and the parent or parents who have been caring for the child between the time of birth and the hearing on custody.

Scenarios illustrating U.S. custody law

The following are two scenarios illustrating U.S. laws regarding child custody.

Scenario no. 1

John and Susan have been married for 12 years. They have two children: Stacey, age 10, and Joseph, age 8. John works as an electrical engineer for a computer company; Susan works as a salesperson for a pharmaceutical company. They both have been active in raising the children, although Susan has handled more of the day-to-day child care than John. John coaches the children’s soccer teams. Both parents attend parent-teacher conferences. Marital difficulties include conflicts between John and his wife’s parents; John’s intimate relationship with another woman; and disputes over how money is spent. John and Susan decide to divorce. They both seek primary custody of Stacey and Joseph.  

John and Susan each hire attorneys, and the attorneys file papers in the court seeking a divorce and primary custody of the children. Under court rules, absent an emergency, a judge will not conduct a trial to decide custody until the mother and father have attempted to resolve their dispute through mediation. Mediation is a process, often conducted by a mental health professional, by which the mediator works with the parties to see if a voluntary settlement can be reached. A voluntary settlement is, by nature, less stressful to the parents and children and is usually less costly than litigation. A mediator cannot require the parties to settle their case. The parents have a right to a trial before a judge if they cannot settle their case.

In the city where John and Susan live, the mediation service is provided by the court at no cost to the parties other than the filing fees for the law suit. In some geographic areas, there may be a charge for the mediation service. At the initial meeting with the mediator, John and Susan express a great deal of anger with each other. Susan is furious about John’s relationship with another woman. John is angry about what he views as continual interference by Susan’s parents.  And both are angry about financial issues. The mediator says she understands each party’s anger, but seeks to have John and Susan focus on what is best for the children rather than their anger at each other.

The mediator asks if it might be helpful for her to meet with the children. John and Susan agree, and the mediator meets with Stacey and Joseph, first together, and then separately. After meeting with the children, the mediator reports to John and Susan that the children love and feel attachment to each of them, and the children wish the fighting between their parents would stop. The children did not express a preference about with which parent they would like to live.

The mediator explains principles of child development and the needs of Stacey and Joseph. The mediator assists John and Susan in agreeing that the children would benefit from a good relationship and steady contact with both parents.

John and Susan agree to a joint custody arrangement in which they will each share in major decisions concerning the children. Their parenting plan also will provide for joint physical custody. The children will be with Susan approximately four days per week and with John three days per week. John and Susan plan to live less than 3 kilometers from each other. John will continue to coach the children’s soccer teams, and both parents will continue to be involved in the children’s school activities.

John and Susan agree to discuss at least once every six months how the arrangement is working out and to determine if any modifications to the arrangement would be helpful to the children or them. In the event John and Susan cannot agree on a significant issue about the children, they agree to consult a mediator again.

With the help of their attorneys, John and Susan enter into a settlement agreement regarding the children (and other issues on the divorce). The judge signs the order.

Scenario no. 2

Mary and Richard have been married for 6 years. They have one child, Peter, age 5.  Mary works part-time as a waitress; Richard installs roofs. There have been issues of violence during the relationship, particularly when Richard has drunk large quantities of alcohol.    Richard has struck Mary on multiple occasions, giving Mary bruises and once a broken arm.  He also threw a frying pan at Mary and missed her, but struck Peter, requiring Peter to have stitches. Richard’s spankings of Peter also have left bruises. After a recent episode of violence, Mary called the police. The police arrested Richard. He was jailed, but released on bond.  With help of an attorney, Mary obtained a temporary order of protection, prohibiting Richard from coming near her or Peter. If Richard violates the order of protection, he will be arrested again.  Mary now seeks a divorce and custody of Peter. Richard also seeks custody of Peter.

Since the case of Mary and Richard involves recent domestic violence and Mary is afraid of being in the same room with Richard, the court will not require that Mary and Richard mediate their dispute. The court, however, does order an evaluation of the parties by social service workers employed by the government. The investigator confirmed the incidents of abuse of Mary and Peter by Richard. The investigation includes a medical examination of Peter and an examination of Mary and Richard by a mental health professional. The investigators conclude Mary is an appropriate custodian of Peter, but Richard is not. There was some concern that Mary allowed a dangerous situation for Peter to continue for too long, but Mary was considered to be a generally good parent and to have eventually taken appropriate steps by calling the police and securing an order of protection.

The investigator and mental health evaluator found that Richard had significant problems with alcohol abuse and anger management. The investigator and evaluator recommended, and the judge agreed, that Richard could have supervised visitation with Peter a few hours per week at a social service agency if he agreed to enter a treatment program for his alcohol and anger problems. Under the supervised visitation program, a social service worker would be in the same room with Richard and Peter to observe their interaction. The social service worker could stop the visitation if it appeared to be harmful to Peter. The social service worker and treatment provider also could report to the court if sufficient progress had been made to warrant unsupervised visitation by Richard.


The Hague Convention on the Civil Aspects of International Child Abduction

In 1980, representatives of many countries meeting at the Hague in the Netherlands completed drafting “The Hague Convention on the Civil Aspects of International Child Abduction.” Since that time, this convention has been approved by 89 countries. The United States has ratified this convention; Japan has not. In fact, Japan is the only country among the Group of Seven industrialized nations that has not signed the convention.

The convention provides for the prompt return of children who have been wrongfully taken to or retained in another country that has ratified the convention. In order for the convention to apply, the taking or retention of the child must violate a parent’s rights of custody under the laws of the state in which the child was a “habitual resident.” There is not a precise definition of a child’s state of “habitual residence,” but it has been described as the state in which the child (as well as usually the child’s parent or parents) have a “settled purpose” to remain there. The time period for remaining in the state may be limited or indefinite. A person has only one state of habitual residence at a given point in time, but the state of habitual residence may change, depending on the facts of the case, including having a new “settled purpose.”

Assume, for example, there is a case involving a father originally from Australia and a mother originally from Denmark. (Both Australia and Denmark have ratified the convention.) Assume further that the couple has been living in Australia for five years and that they have a 3-year-old child. If the wife leaves her husband and travels to Denmark with the child without the husband’s permission to remove the child, the husband could file a legal action under the convention asking Denmark to send the child back to Australia – the state of the child’s habitual residence. Under the convention, Denmark would be obliged to send the child back to Australia unless a defense to return of the child could be shown. Under the convention, defenses to return of the child are:

  1. The person seeking return was not actually exercising custody at the time of removal or retention. (In this scenario, if the husband, wife, and child were living together in Australia at the time the wife took the child to Denmark, the husband was exercising rights of custody. This defense to return would not apply.)
  1. The person seeking return of the child acquiesces to the removal or retention. (Under the facts of this scenario, the husband did not acquiesce.)
  1. There is a grave risk that return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. (In the facts, as presented, there is no showing of harm from return of the child to Australia. The person objecting to return would have to prove such facts. If a parent could show that return of the child to the state of habitual residence would likely expose the child to abuse, the child would not have to be returned.)
  1. The child objects to return and has attained an age or degree of maturity such that it is appropriate to take into account the child’s view. (This factor would not be applicable to a 3-year-old child.)
  1. The proceedings for return of the child were not commenced until more than one year after the removal or retention and the child is settled into a new environment. (This defense would not apply if the father acted promptly after the child’s removal.)
  1. The return of the child would violate principles relating to protection of human rights and fundamental freedoms. (This factor is not likely to apply in this case.)

In addition, the convention applies only to children who are under the age of 16.

On the facts of this case, the defenses to return of the child are not likely to apply, and the child should be returned to Australia. If the mother wishes to assert a claim for custody and obtain permission to take the child to Denmark, she may do so, but the dispute should be decided in Australia – not Denmark.

An order for return of the child under the Hague Convention on the Civil Aspects of International Child Abduction does not mean that custody of the child automatically will be given to the parent who was left behind. The order does mean that the child should be returned to the state of habitual residence from which the child was taken and that the courts in the state of habitual residence should decide the child’s custody.


Jeff Atkinson teaches at DePaul University College of Law Chicago. Subjects he has taught include Family Law, Health Care Law, and Ethics. He also serves as a professor-reporter for the Illinois Judicial Conference, responsible for training judges. Professor Atkinson has written four books about Family Law in the United States. He lives in Wilmette, Illinois, USA.  His e-mail address is