Quick answer: Courts decide custody on the best interests of the child, a standard each state fills in with its own list of factors, such as each parent's relationship with the child, their ability to cooperate, the child's needs and adjustment, the child's wishes, and any history of abuse. No state lets a parent's sex decide the outcome, and the weight of each factor is left to the judge.
On this page:
- The best interests standard
- The factors courts commonly weigh
- How state lists differ
- Does the child get to choose?
- Abuse and domestic violence
- What courts are told not to consider
- What evidence and professionals courts use
- What to do with this
The best interests standard
The Legal Information Institute explains that courts determine custody based on the best interests of the child. The analysis looks at the wishes of the parents, the wishes of the child depending on age and maturity, the child’s relationship with each parent and with siblings or other significant people in the household, the child’s adjustment to home, school and community, and the mental and physical health of everyone involved. The Institute adds that, by default, parents share equal guardianship rights and each has an equal claim to custody when they separate, and that custody is mostly state law. The forms custody can take are explained in legal vs. physical custody.
The factors courts commonly weigh
Every state writes its own list, but the same themes keep coming back. These appear in most of the statutes we reviewed:
- The child’s relationship with each parent and how much care each has given in the past.
- Each parent’s willingness to support the child’s relationship with the other parent and to cooperate in decisions.
- The child’s needs, age and development, and adjustment to home, school and community.
- The child’s wishes, when the child is mature enough to express a reasoned preference.
- The health of the parents and the child, and any problem with alcohol or drugs.
- Ties to siblings and other significant people.
- Abuse, neglect and domestic violence.
How state lists differ
| State | The list | Notable points |
|---|---|---|
| Virginia | Ten factors (20-124.3) | Includes each parent’s role in the past and future, support for the child’s bond with the other parent and the child’s reasonable preference |
| Wisconsin | Thirteen factors, not in order of importance (767.41(5)) | Includes cooperation, past time with the child, substance abuse and a parent’s proposed lifestyle changes to maximize placement |
| Washington | Seven residential factors (RCW 26.09.187(3)) | The strength, nature and stability of the child’s relationship with each parent gets the greatest weight; employment schedules count |
| Vermont | Nine factors (15 V.S.A. 665(b)) | Includes the primary care provider relationship and evidence of abuse |
| Wyoming | Ten factors and a catch-all (20-2-201(a)) | Includes the distance between the parents’ homes and sex-offender registration |
| West Virginia | Objectives (48-9-102) | Stability, continuity of attachments, meaningful contact with each parent and security from harm; equal time is the default unless agreed otherwise or harmful |
Washington shows that weight can be built into the list; Wisconsin shows the opposite, saying its factors are not necessarily listed in order of importance. In practice the judge decides how much each matters in your case.
Does the child get to choose?
Not on their own, but the child’s wishes are a factor in the states we reviewed. Virginia counts the reasonable preference of a child of reasonable intelligence, understanding, age and experience; Wisconsin counts the child’s wishes, communicated by the child or through a guardian ad litem; and Washington counts the wishes of a child sufficiently mature to express reasoned and independent preferences. Where a court is changing an existing plan, West Virginia allows it to accommodate the reasonable and firm preferences of a child 14 or older, or of a younger child mature enough to express a voluntary preference. A preference is one input and does not bind the judge.
Abuse and domestic violence
Safety questions are written into the lists. Virginia lists any history of family abuse, sexual abuse, child abuse or an act of violence, force or threat within ten years before the petition, and lets the court disregard the factor on supporting the other parent’s contact if it finds such a history. Wisconsin lists evidence of interspousal battery or domestic abuse and creates a presumption against awarding legal custody to a party who engaged in a pattern or serious incident of it. Wyoming treats evidence of spousal or child abuse as contrary to the child’s best interest and requires visitation that protects the children and the abused spouse. Vermont lists abuse and its impact on the child and on the child’s relationship with the abusing parent.
What courts are told not to consider
Several statutes name things that may not decide custody. Wisconsin, Wyoming and Vermont bar a preference for one parent because of sex, and Vermont adds that a parent’s financial resources cannot be the basis for a preference (15 V.S.A. 665(c)). Virginia states that there is no presumption in favor of either parent. Wisconsin also provides that no court may deny periods of physical placement for failure to meet a financial obligation to the child or former spouse. Missed payments are enforced separately; see what happens if you do not pay child support.
What evidence and professionals courts use
Judges rely on testimony, records and, in contested cases, professionals. Wisconsin lists the reports of appropriate professionals among its factors and requires the court to appoint a guardian ad litem when custody or placement is contested, with limited exceptions. Vermont admits expert reports evaluating the child’s best interests if the expert is available for cross-examination, and admits evidence about a parent’s other conduct only if it affects the parent’s relationship with the child. Virginia lets the court order a custody evaluation. These steps are part of the larger process described in how divorce works, step by step.
What to do with this
Read your own state’s list, because that is the one the judge will use, and check whether your state sets a default or a presumption, as the Parenting Time Calculator shows state by state. Turn any proposed schedule into overnights with that calculator, then see what it does to support with the Child Support Calculator. The family law calculators cover every state, and our methodology page explains how each figure is verified. For advice on your own case, talk to a licensed family law attorney in your state.