The “Best Interests of the Child”? How Custody and Visitation Rights Are Determined

When going through your divorce process, you will encounter something that seems mysterious and maybe even arbitrary to you—a judge’s decision about who receives custody and visitation rights. It’s also probably one of the things that worries you the most. You fear having restricted access to your children who you love dearly, and you might think an arbitrary decision from a judge might bar you from seeing your children on a regular basis.

In this post, we’ll focus on physical custody (and set aside legal custody for now) and visitation rights, and talk about some of the factors that go into determining these decisions. While there is no formula for custody and visitation, with each case evaluated on its own merits, there are some factors that you and your attorney can consider when strategizing.

Assessing Your Children

The courts will first look at some basic information about your children that includes:

  • Age and sex. The age of your child has a particularly big effect on custody, especially if he or she is over 14 years old.
  • Health. The court will consider the health of your child, including any existing physical illnesses and medical or mental health conditions.
  • Existing routine. Your child’s routine will play a large factor in the court’s decision, especially looking at their daily activities, where they go to school, and how long they’ve resided at the same house.

Parental Compatibility

“Compatibility” is a broad term and courts may interpret it quite differently from one another. Generally, this means that courts are looking at aspects such as:

  • Emotional compatibility. Does the child show emotional closeness toward one parent over another? Does one parent seem to display a significantly higher closeness to the child than another parent?
  • Discipline compatibility. Does the child seem to behave better with one parent versus another? Does one parent seem to have established a more stable, consistent sense of discipline than another parent?

Parental Ability

The courts will consider many factors that relate to the ability of the parents to take care of their children including:

  • The health and lifestyle of each parent
  • Any history of abuse or violence
  • Any other factors that affect or interfere with critical activities such as feeding, clothing, and providing medical care


While “stability” is open to broad interpretation, the courts will look for any evidence that points toward a stable environment for the child. In many cases, that includes continuity of living in the same house, going to the same school, participating in the same extracurricular activities, and socializing with the same friends. It also means parental stability. If one parent has continually lived and maintained the same house for his or her children while another parent lived in various other places during that time, then the court will likely favor the parent who stayed in the house the most.


Part of establishing stability also means cooperating with your spouse. If one spouse shows greater cooperation ability while another spouse constantly makes things more difficult, then the courts may favor the cooperative spouse when awarding custody.

Final Note: Visitation Rights Are Not Punishment

Even if you’re awarded visitation rights instead of child custody, this is not a punishment. The court takes all of the above factors into consideration in order to ensure that your child lives in the most emotionally comfortable, most stable, and safest environment. That’s all. Often, it’s about placing the child in the best of two great scenarios.

However, in most cases you will receive visitation rights that provide you a lot of time with your children. Preferably, you and your spouse will work together to set up a visitation schedule. If you cannot agree to a visitation schedule, a court will step in and determine a schedule that may include prescribed weekend days, weeknights, holidays, and other periods of time (such as during a child’s summer vacation).

Remember, custody does mean that your child will primarily reside with one spouse, and so you will have less time to spend with them. But visitation rights compensate for this time by allowing you a lot of time to spend with your children. Work with your spouse and your attorney to come up with the most amicable visitation schedule possible. It’s always better when you have control over your visitation rights rather than a court.

Do you have more questions about custody and visitation rights? Call us today for a consultation over your current situation.