Child Custody in Divorce Actions

Parenting Agreements

In most divorce cases involving minor children, the parents resolve the issue of child custody in a parenting agreement. A parenting agreement is a plan for raising a child after the parents are divorced. It defines the rights and responsibilities of the parents, including issues of child custody and visitation rights. A parenting agreement is usually a result of negotiations between the parents and their lawyers.

After both parents agree on the terms of the parenting agreement, they submit the agreement to the court. In most cases, the court will accept the agreement. If the agreement is accepted by the court, the agreement becomes legally binding on the parents. Thereafter, either parent can go to court to enforce the agreement.


In some cases, the court will order the parents to participate in mediation if they cannot agree to custody in a parenting agreement.

Court Procedure

If the parents cannot agree on custody in a parenting agreement or the court refuses to accept the agreement, the court will determine which parent is entitled to custody of the child. The court may grant physical custody (the right to have a child live with a parent) to one parent or both parents, and the court may grant legal custody (the right to make decisions regarding the child’s general welfare) to one parent or both parents.

The court will hold a hearing to determine the best interest of the child. The best interest of the child is the legal standard for determining issues of child custody. At the hearing, each parent can offer evidence to prove that granting custody to him or her would be in the best interest of the child.

Generally, the court will consider all relevant evidence in making its decision. Courts typically consider the following factors:

* The child’s age and sex.

* Any unusual needs of the child, including needs involving the child’s mental or physical health.

* The child’s wishes (if the child is in his or her teens).

* The mental and physical health of each parent.

* The wishes of each parent.

* The ability of each parent to provide for the child.

* The positive and negative elements of each parent’s lifestyle.

* The stability of the child’s current living situation.

* The probable effects of a change in the child’s residence, school, or lifestyle.

* Each parent’s willingness to promote an ongoing, healthy relationship between the child and the other parent.

* Which parent is currently the primary caregiver of the child.

* Past child abuse or neglect by either parent.

After considering the evidence, the court will award custody to one or both parents.