Skip to main content

Verified by Psychology Today


Who Gets the Kids if We Divorce?

Custody ideas have changed. You have some control, with research and the law.

Key points

  • In the past, mothers almost always got custody of the children; the presumption was that children needed their mothers more than their fathers.
  • Today, the research supports fathers’ importance in parenting, and fathers are respected by the courts as having equal parental rights.
  • "Who gets the kids?” is the wrong question. The question to ask is, “How can we raise them together, under two roofs?”
 Alena Darmel/Pexels
Worries about losing your kids can keep you up at night. But, most likely, you won't lose them.
Source: Alena Darmel/Pexels

It’s 2:00 a.m., and your spouse has just announced that they want a divorce. Shocked, or maybe not so surprised, you are flooded with worries. You may be worried about your home or whether you’ll survive financially. You might be scared of the unknown. And the most common worry is about your kids. Jason (not his real name) asks me, “She decides to divorce me, but does that mean I lose our kids?”

In the “bad old days” when my parents divorced, in the 1950s, mothers almost always got custody of the children. The presumption was that children needed their mothers more than their fathers. Fathers were allowed to visit. Every other weekend was the standard visitation schedule. The thinking then was that children had one primary attachment figure, and that person was invariably the mother.

We now know that children have multiple attachment figures. Parents, grandparents, nannies, and others may be very important attachment figures. Today, the research supports fathers’ importance in parenting, and fathers are respected by the courts as having equal parental rights as mothers. The research shows that this benefits the children.

A Holdover From Tradition

Still, today, there is often one primary caregiver during the marriage, a common division of labor. And, in much of our culture, that is often the mother, even working mothers. But that is slowly changing. In my work, I have noticed more young families working hard to balance out work and parenting responsibilities. Women are no longer expected to sacrifice their careers to raise children, and men are just as good at changing diapers as women!

Yet, the idea persists for many people that mothers are the “real” parents. The myth that “Disneyland dads” are accessories to the relationship (and expendable) continues today, although it may be held unconsciously. The reality is that, in most situations, the courts, listening to the research, want the children to have secure relationships with both parents.

So, I reassure Jason and tell him, “Let’s find a way to maximize your kids’ time with each of you when we develop your parenting plan.” Jason and I arrange meetings with his wife to see if they can agree to a realistic parenting schedule that maximizes the children's time with each of them.

Custody: What Is It?

There are two legal definitions of custody in most states. The decision is whether one parent has sole custody or both parents have joint custody.

Legal custody: This is about which parent makes important decisions about the children’s medical care, education, religion, etc. The courts favor joint legal custody even if the children reside primarily with one parent. There are a few exceptions, as noted below.

Physical custody: This is about the parent with whom the children live. Generally, again, joint physical custody is the norm, although the parenting schedules may vary and are not necessarily “50–50.”

What the Courts May Consider When Deciding About Custody

The courts consider the “best interests” of the child, and this is partly based on the research showing the importance of the child’s attachment to each parent. This is very subjective, and there is no clear formula for a judge to measure the child’s best interests. In addition, the judge doesn’t know you or your children, so, unless there is a custody evaluation, they don’t have a lot of information on which to base their decisions.

They will consider the children’s ages, health, and relationships with each parent. They will also consider the children’s ties to their home, school, and community to keep your children’s lives as stable as realistically possible.

Rarely, courts will award full custody to one parent and remove parental rights from the other. Certain red flags may limit or prevent a parent’s time with their children:

  • A parent abandons the children and moves away.
  • A parent is an addict and impaired such that he is not safe or functioning.
  • A parent is homeless (or incarcerated) or can’t provide food and shelter for the children.
  • A parent has a long history of physical or sexual abuse of a child.

Parents Can Control Custody Decisions

Most parents now can develop a schedule that the courts will accept. However, if the parents cannot agree on a schedule or are in conflict about custody, the judge becomes the decision-maker, taking that control away from the parents.

Occasionally a judge will order a custody evaluation, a lengthy and expensive professional assessment of family dynamics in order to recommend a custody arrangement. Avoiding this level of conflict is important when you want to protect your children from the damage of your divorce.

There are many resources available to help parents create parenting schedules that are tailored to the needs of the children and their families. Protecting your children from conflict between you and your soon-to-be ex is critical.

Jason and his wife come to my office to work out their parenting plan. Bethany says, “I can’t accept that I won’t put my kids to bed every night!” Jason agrees and tears well up in his eyes. “I can’t imagine not having dinner together every night,” he says. We sit quietly for a few minutes as the pain of being a “single parent” or a “part-time parent” weighs on both parents.

Sharing parenting time is a difficult adjustment, I tell them. It is one of the hardest losses in divorce. Years later, I say, you may still feel that loss. But once there has been a decision to divorce, your challenge—as parents—is to continue to parent your children in a way that supports their well-being, their future success in life, and their mental health.

So, ”Who gets the kids?” is the wrong question. The question to ask yourself is, “How can we raise them together, under two roofs?”

© Ann Gold Buscho, Ph.D. 2022

More from Ann Gold Buscho Ph.D.
More from Psychology Today