How Does the Court Decide the Custody and Placement of Children?

January 25, 2021 Divorce

Karp & Iancu S.C. explains the factors a court or Guardian ad Litem considers when determining placement and custody of a child and helps you understand which factors might be most important in your case. From the concept of joint decision-making to the goal of maximizing time with each parent, keep reading to learn how custody and placement are decided and what you can do to influence that decision.

Custody and placement arrangements are among the most important things a judge can determine. Because of that, a judge would prefer not to determine them at all. Judges almost universally agree that parents are best situated to decide how to share parenting decisions and parenting time. Parents know their children’s history, routines, and unique idiosyncrasies. Judges know none of these things and learn them only through the evidence presented in court.

However, there are laws in place to guide judges in making such decisions and to help them prioritize considerations that are in the children’s best interests. By examining the factors prescribed by law, a judge can substitute his judgment for that of parents who have abdicated their responsibility for decision-making due to their inability to agree on what is best for their children. Having a judge decide is usually never best for a family. Nonetheless, it is sometimes necessary. If your case is headed in that direction or you fear a judge will have to get involved—how will a judge decide your children’s custody and placement arrangements?

Presumptions Under the Law


The court has to start by assuming certain things under the law: (1) that joint legal custody is in children’s best interests, and (2) a parent who has engaged in a pattern or serious incident of interspousal battery should not have custody.

These presumptions are “rebuttable.” That means that although a court must start from those presumptions, a party can present evidence to prove they are not true in their particular case.


There are also some presumptions a court must accept regarding placement. For example, a court must:

  1. 1. Maximize the time between parents (there is no presumption of 50/50 placement, however)
  2. 2. The court cannot favor one parent over the other based on sex or race (there is no presumption that children—even young children or babies—must be with their mother).
  3. 3. There is a presumption that children are entitled to periods of placement with each parent. Again, a party can present evidence to the contrary to rebut this presumption.

Factors to Consider

While keeping the foregoing presumptions in mind, the court must then analyze the evidence in the context of the following factors to determine what kind of custody and placement arrangements are best for a child:

  1. 1. The wishes of both parents.
  2. 2. The wishes of the child (if he or she is old enough to express a preference).
  3. 3. The child’s relationship with each parent, with siblings, and with any other person who may reside with the child or significantly affect the child’s best interests.
  4. 4. The amount and quality of time that each parent has spent with the child in the past and what efforts a parent is willing to make to spend time with the child in the future.
  5. 5. The child’s adjustment to home, school, religion, and the community.
  6. 6. The age of the child and the child’s developmental needs.
  7. 7. Whether the mental or physical health of the child, a parent, or any other person living in a proposed custodial household will negatively affect the child’s best interests.
  8. 8. The need for regularly occurring and meaningful periods of placement to provide predictability and stability for the child.
  9. 9. The availability of public or private childcare services.
  10. 10. The parent’s cooperation and communication and whether either party unreasonably refuses to cooperate or communicate with the other party.
  11. 11. Whether each party can support the other party’s relationship with the child
  12. 12. Whether there is evidence that a party engaged in abuse of the child.
  13. 13. Whether there is evidence either party engaged in interspousal abuse or domestic abuse.
  14. 14. Whether either party has or had a significant problem with alcohol or drug abuse.
  15. 15. The reports of appropriate professionals (if admitted into evidence).
  16. 16. Any other factors the court may deem relevant in each individual case.

As you can see, the court must weigh many factors. Some will be more important than others and some may not be relevant at all. Nonetheless, the judge must listen to all the facts presented and view all the evidence with an eye toward satisfying his obligations to consider all of the foregoing factors—keeping in mind some of things that may be most important to you as a parent, may not be most important to the judge.

To discuss these factors in more detail or to learn what kinds of factors might be most important to the judge in your case, please call us to arrange a 100% confidential, no-hassle consultation.