If you are getting divorced and there are children of the marriage, you may worry that you will lose custody of your children. Both parents, understandably, often want to keep and foster a meaningful relationship with the children after the divorce is finalized and may worry about how they will prove to a court that the children of the marriage should remain with them.

Compound this very real concern after seeing the custody battles that are shown on TV and in the movies, and it is no wonder that divorcing parents become so fearful over a protracted custody battle.

What is Custody Anyway? 

The first thing to remember about child custody is what it actually means and the difference between custody and timesharing or visitation.

Unless you are completely unfit and have your parental rights terminated by a judge, you always have custody of your child, regardless of where the child is located. In other words, even on the nights when the child is with mom, dad still has “custody” of the child, in the sense that he can make the core, basic decisions about raising the child that any parent has.

As a general rule, unless a parent presents some danger or is completely unfit, both parents will have shared joint custody of the child regardless of how many nights the child spends with one parent or the other. 


‘Visitation’ is an old term that is not used as much anymore by the law or by courts. Today, courts use the term ‘timesharing,’ representing how many nights the child will spend with one or another parent over the course of a week or month. 

Parents can have equal timesharing on a 50-50 basis, or one parent can have more nights per week or month than the other, in which case that parent would have the majority of parenting time.

Timesharing is where most of the arguments in child custody cases arise; both parents often want as many nights with the children as possible and will often argue, alleging that it is in the children’s best interests to spend the majority of overnights with one parent or the other.

Factors to Determine Timesharing

So, how does a judge determine how many nights in a given week a child will spend with one parent over another? 

The test is simple; the court looks to the best interests of the child to see whether those interests are best served by the child having the majority of overnights with mom, dad, or shared equally between both.

Note that the court is not trying to find that one parent is “bad” or “harmful”; in many cases, both parents are able and fit, but the circumstances, lifestyle, or another component of one parent’s life just make it in the child’s best interest to spend more overnights with that parent.

For example, one parent may live closer to the child’s friends, may have a larger familial support system, may live in a home that has more room for the child, or may work a job that allows them to spend more time with the child. The other parent is not harmful or unfit at all—it is just that one parent’s life is set up in a way that is better for the child.

Defining the Best Interests of the Child

Still, the “best interests of the child” can admittedly be vague, so the law has set up some guidelines that judges use to see what is in the best interest of the child.

Cooperating and Keeping the Peace

One major factor is which parent is simply more cooperative—in plain terms, which parent is less argumentative, more likely to foster a meaningful relationship with the other parent, or more likely to meet the other parent’s requests for last-minute changes. In plain terms—can you get along with the other parent and cooperate with them?

This punishes parents who argue, fight, or harbor hostility toward the other parent—or worse, who may use the child as a pawn to get back at the other parent, or who may put the child in the middle of arguments between parents.

How Much Time Do You Have? 

Courts will also look at your time. There is nothing inherently wrong with using babysitters or other caretakers. We all know that parents, especially single parents, may need to work long hours. 

But the parent who seems like they will have the most time to dedicate to the child when the child is with that parent will have some advantage in a custody or timesharing dispute.


The continuity of the child’s lifestyle is an important factor, as well. Courts do not want to uproot a child from their school, family, friends, or extracurricular activities. A parent whose lifestyle is one that seems like it will facilitate that continuity will have an advantage in child custody cases.

Morals and Ethics

The moral fitness of parents will be looked at, as well. Certainly, a parent who does a little gambling, who may drink socially, or who has a casual intimate relationship should not have their fitness as a parent questioned.

But there are circumstances where one parent’s lifestyle brings their ability to parent into question. Worse is a parent that exposes the child to that behavior.

For example, a court probably would not punish a parent who smoked marijuana. But a parent who did it in front of the child, or who left marijuana paraphernalia where the child can find it, or who was under the influence of marijuana at the child’s sporting event may have their parental decision-making questioned in a custody case.

Involvement Level

A parent’s level of involvement in their child’s life is a big factor in determining custody.

In a typical child custody case, a parent may be questioned about how much that parent knows about the child’s life. The court will favor parents who are involved enough in the child’s life that they understand what the child likes and does not like, who their friends are, what their favorite school subject is, who their favorite athletes are, etc.

Any Other Factor

Judges actually have the power to look at almost any factor when determining what is in the best interests of a child. So long as you can explain why something is relevant to custody or parental timesharing, if the judge agrees, they are allowed to take it into consideration. 

We can help you understand how to get an advantage in your child custody case and answer your questions about your relationship with your child after your divorce. Contact us for questions about what you can reasonably expect in your divorce and child custody case. 

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