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How to Get Primary Custody of Children During a Divorce

Updated: 09/27/2022

Est. Reading: 6 minutes

A custody dispute over who will hold custodial rights is often the most contentious part of a divorce. You may not be making a fight out of it, but if your spouse is making a custody issue into a sticking point in your divorce process you will need to be prepared when you go into court. In this article, we will outline a number of important points to keep in mind to help you win legal custody of your minor children. 

A divorce attorney with The Law Office of Jeanne M. Wilson can provide you with the legal advice and guidance to help you navigate the major decisions you will have to make when fighting for primary custody of your children. Contact The Law Office of Jeanne M. Wilson & Associates to speak with a child custody lawyer, today to see what we can do for you.

How the Court Determines Which Parent Gets Primary Custody

Family courts will work to award custody arrangements that are in the best interest of the children. Different judges will use different criteria to make this determination, but in general, the following are the most commonly considered factors:

  • How old are the children
  • The physical and mental health of each parent as well as the children
  • The economic standing of each parent as it reflects on their ability to provide for the children
  • How each parent's lifestyle could impact the child's growth and development
  • The established routine of the children, including school ties, community interaction, and connections with religious institutions
  • The child's opinion on the situation if they are emotionally mature enough 

If the court is not able to make a custody determination based on these criteria, they will look into which parent is better equipped to maintain stability and promote development and growth for the children. This could be decided based on who has been the primary caregiver for the children, or on which parent is more likely to provide and promote educational opportunities and community relationships. 

an attorney at their desk with a wooden family cutout and gavel on it while they review a custody case.

Some custody cases may prove more difficult to decide than others. This is particularly true in situations where one parent is claiming that the other is unfit to take sole custody of the children. In these cases, the family court judge may order a child custody evaluation to offer more information and insight into what option would be best for the custody agreement. 

When is a Parent Considered Unfit to Have Custody?

In the event that a parent argues that the other is unfit to have legal custody of their children, the court may decide to conduct a custody evaluation to help them decide what is in the best interests of the children when making custody decisions. The evaluator will take the time to look for convincing evidence of either parent's inability or failure to live up to their parental responsibilities. 

Family court judges usually reserve classifying parents as unfit for exceptional circumstances, but they do hold the power to make that ruling. If one parent is labeled unfit, it is likely that the other will be given custody of the children. The court will look closely at a number of factors to make this decision, including:

  • Child abuse - if a parent has child abuse charges on their record, it is incredibly unlikely that they will be able to come out on top in custody disputes. The court has a responsibility to rule in the best interest of the child, and ignoring the possibility of an abusive relationship does not meet that responsibility. In fact, a parent with past child abuse charges may be prevented from having any visitation rights at this point. 
  • Domestic abuse - Similar to situations involving child abuse, a parent with a history of domestic violence will find it nearly impossible to overcome this in a custody dispute. 
  • Substance abuse - if a parent has a history of substance abuse and addiction they may be declared unfit to hold legal custody. They will have to be able to offer proof of reliability and sobriety in order to be considered to take physical custody of the children. If the parent has struggled with relapses it is unlikely they will be able to win custody. 
  • Living conditions - assuming one parent moves out during the divorce process, the court will need to know what living conditions the children would have in either home. The evaluator will look over both homes before submitting their report. 
  • Mental health - The court may decide that a parent with a mental health history or unstable or aggressive behavior may pose a risk to the children. This can be a difficult obstacle to overcome but is possible with the proof of counseling or therapy, a prescription regimen, etc. to demonstrate that the parent is in control of their condition. 
  • The parent's professional commitments - Work schedules can have a significant impact on a parent's ability to raise their children. Being required to work particularly long hours or on an odd schedule, rotation can result in the court seeing you as a worse option to take sole custody of your children. 

Can You Get a Custody Order Changed?

Family court judges strongly prefer to maintain a stable and routine environment for child custody decisions. This can offer an obstacle for parents hoping to change their custody order, but it is not insurmountable. Changes to the specific circumstances of your family can help convince a judge of the necessity for changes to your existing custody order.

If you are able to demonstrate a significant change in circumstances and show that the existing order is no longer in the children's best interest, you may get your case reviewed by a family court judge who can issue a new ruling if they see fit.  

How to Prove You Should Have Primary Custody

There are a number of factors that judges will look at when determining the outcome of a custody trial. While this means that the final decision is out of your hands, it does not mean that you cannot present the best possible argument for yourself to take legal custody of your children. Follow the advice below to give yourself the best chance in front of a family court judge.

Be Prepared

Don't wait until the last minute to get everything squared away for your trial. Hire an experienced family law attorney to help you know what to expect and fully understand the laws surrounding divorce and child custody cases. The better you understand the situation, the more success you will have in influencing the decision. 

Analyze Your Living Situation

If you have moved out of your marital home you will want to make sure that your new primary residence demonstrates your ability to provide a safe and stable environment for your children at home. It may also help to look for a home nearby to where you used to live, as this will disrupt the children's daily routines less and make it a more attractive option for a judge than if they had to uproot parts of their lives. 

a child custody petition with tips on how to prove to court you should have custody

Know Your Children

This may seem obvious, but you need to know the details of your children's lives if you want to win custody of them. Being able to demonstrate knowledge ranging from medical issues to school interests to friends to extracurricular activities can help show a judge that you are invested in their lives. 

Work with the Other Parent

The court will want to see that the parent with custody of the children is willing to work to maintain a meaningful relationship with the non-custodial parent. Demonstrate that willingness to the judge, as any behavior to the opposite effect will not be viewed favorably. 

Hire an Experienced Child Custody Lawyer

If you are going through a divorce and find yourself locked in a custody battle, or if you are a non-custodial parent and are hoping to change your custody order, you will need the services of a child custody attorney. They will be able to help you understand the legal issues surrounding custody matters, protect your parental rights, and work with you to build a case to win permanent custody of your children. 

At The Law Office of Jeanne M. Wilson and Associates P.C, our talented legal team is ready to help you navigate the pitfalls of your divorce action and fight for a child custody agreement that is in your favor. Call our Colorado Springs family law firm today or schedule an appointment online to get started!

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