What Is Primary Custody? How Do You Get Primary Custody? Can You Change Primary Custody?
If you are considering or involved in a divorce proceeding, and there are still minor children living in the marital home, one of the key issues to resolve is who will have primary custody of the child. Though it’s becoming more common for courts to award “joint physical custody,” where the child spends approximately equal time in each home, there’s still a preference for granting one parent primary custody.
Parents can agree to the terms of custody without the intervention of the court, but it’s common for the court to review and approve any custody arrangement. If you cannot come to an agreement cooperatively, the court will typically hold hearings and set custody and visitation arrangements.
What Is Primary Custody?
The concept of primary custody relates specifically to “physical custody,” which refers to where the child resides. Physical custody is distinguished from “legal custody,” which addresses the role of each parent in making decisions about the child’s welfare, including their education, healthcare, religious training, and extracurricular activities.
Custody laws vary from state to state, but in Texas, for example, a parent with primary custody, with whom the child resides more than 50% of the time, is considered to have primary custody. In Nevada, however, a parent must have the child more than 61% of the time or the custody is deemed “joint, rather than primary. The parent with primary custody is commonly referred to as the custodial parent, and the other parent is commonly known as the “noncustodial parent.”
The Requirements of Primary Custody
So how does a parent get primary custody of a minor child? The parents can work out an arrangement on their own, but the court will look at it to ensure there hasn’t been any coercion or intimidation of either party. If the court must determine primary custody, it looks at a wide range of factors, all in an effort to determine what is in the best interests of the minor child. Those criteria can include:
- Strength of the relationship between the child and each parent
- Importance of continuity in the child’s life
- Age and health of the child
- Mental and physical health of the parents
- History of domestic violence or abuse by either parent
- Evidence that either parent has engaged in substance abuse, criminal activity, or other risky behavior
- Reasonable preferences of the child, provided the child has reached a certain age (typically 12 years)
- Demonstrated capability or incapability of either parent to perform the necessary duties of parenthood
The Benefits to a Parent of Getting Primary Custody
The obvious benefit of obtaining primary custody is that you’ll get to spend more time with your children. The more time you spend with your child, the greater influence you’ll have and the more you’ll be able to guide them. Ideally, the more time they spend with you, the stronger your relationship, the higher the level of trust, and the greater degree of control you’ll have over their upbringing.
In addition, if you have primary custody, you will generally be entitled to some level of child support. The amount of child support can vary from state to state, based on the actual amount of time the child spends with you. In some states, you can receive full child support if you have your child more than half the time, but other states don’t allow for full child support unless a child spends two-thirds or more of their time with the parent.
Can You Change Primary Custody After the Initial Order Is Issued?
Court orders are always subject to modification but only by the court. Furthermore, amending a court order can be time-consuming and expensive, unless both parties agree to the change. Nonetheless, you can always petition the court to change the terms of physical custody, though the court typically won’t consider your request unless you can show a significant change in circumstances. If the court agrees to review your motion to amend the custody arrangement, the judge will use the same criteria used to initially establish primary custody—the best interests of the child.
After a divorce, it’s common for a minor child to spend more time with one parent than the other, and the parent with the most time is considered to have “primary custody.” Parents may agree as to who will have primary custody. If they cannot, the court will make that determination, looking at what is “in the best interests of the child.” The custody arrangement can be modified by the court in the event of a significant change in circumstances, but the same standard will be applied.