First and foremost, it’s almost always best for two parents to work together with their attorneys — or even through arbitration — to determine the best solutions during a divorce proceeding. Courtroom battles can be hectic, time consuming, and result in even more stress. At the end of the day, you would be leaving the ultimate decision about what happens to your kids in the hands of someone who has spent almost no time in their presence. 

When the decision is left up to the courts, though, how will a judge decide which parent or guardian should receive sole custody?


  • What does the child want? Yes, a judge will want to hear from your children before making the determination of sole custody. The opinions of your child may or may not sway the judge’s decision one way or the other depending on age. Older children will have more of a say (those around the age of twelve or older).

  • What is in the child’s best interests? Obviously this is an important question to ask, and difficult to answer. The judge won’t know what the child’s life at home is really like — he or she can only infer. That’s why the judge will look at all the information readily available, like income, social standing, character witnesses, etc.

    A parent who makes less won’t necessarily be prevented from obtaining custody, but if one parent is in poverty and the other makes six figures with a stay-at-home job, it’s not looking good for the parent in poverty. Then again, if the parent who makes six figures does it by selling drugs — you see how things can change on a situation by situation basis.

  • Who is the child’s primary caretaker? The judge will want an answer to this question. This is partly due to psychology growing up. Children will develop a bond with the person who provides the most support. The bond helps a child grow emotionally throughout adolescence. After a divorce this bond can be especially important. Because so many mothers still fall into this category, a court will more often side with her.

  • Are the parents married? Unfortunately, an unwed father is much less likely to win custody of a child even if paternity is established. The only way to obtain custody is by proving that the mother is unable to provide for the child’s basic needs. In many cases the best an unwed father can hope for is shared custody, which at least gives him a say in any important legal decisions that must be made in the future.