ABA Family Legal Guide

Family Law

3.4 Separation, Annulment, and Divorce

Custody

What is the most important factor in deciding custody?

That will vary with the facts of each case. If one parent has a major problem with alcoholism or mental illness, has abused the child, or has committed domestic violence, that could be the deciding factor. If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent will usually be favored for custody. Use of this factor promotes continuity in the child's life and gives custody of the child to the more experienced parent who has shown the dedication to take care of the child's day-to-day needs. If both parents have actively cared for the child or if the child is older, the factor is less crucial, although it is still considered. Regardless of which parent has primary custody, children are usually best served when the child has continued, meaningful contact with both parents.