Child Custody: 6 Things a Divorcing Mom MUST Know

Child custody has changed drastically over the years. Time and time again the law has flipped on which parent, if either, is favored in child custody determinations. In the past, since the formation of the United States and its divorce laws, fathers were automatically granted custody of their children during a divorce. This was due to their role as “head of household” and the law’s view that children were not much more than property (and women either). However, as women’s rights edged forward, and the value of a mother’s role to a child’s healthy development because increasingly understood, the child custody presumptions and laws developed as well.

In the 19th and 20th centuries, almost all states in the United States followed some version of the Tender Years Doctrine. The Tender Years Doctrine proposed that children needed to be raised by their mothers during their tender years (the age of tender years fluctuated widely, ranging from four years to sixteen years old).

Because of this presumption, mothers almost always had sole custody of their young children following divorce matters.

Child Custody and Its Changing Dynamics

However, as the 20th century progressed and society began to reexamine traditional parental and gender roles, the Tender Years Doctrine became outdated. This doctrine made more sense in the context of exclusively working fathers and homemaking mothers. The rise of women’s equality and emergence into the workforce led to a parallel rise in custodial equality. This has led the way to the idea of shared or joint custody, meaning both the mother and father have rights to their children’s legal and physical custody.

As the tides of favored custody arrangements constantly change, this article will dive into six things you must know about the current state of child custody.

1. Know the Difference Between Legal and Physical Custody

The first thing you need to know is that there are two types of child custody that you must understand when determining what is best for you and your children. The first type is legal custody. Legal custody refers to the decision-making ability for your children. This can include choices regarding education, medicine, religion, and extracurricular activities. This means you and your Ex would make your children’s lifestyle decisions together. The second type of custody is physical custody. This refers to where your children live daily. If you have physical custody, you are responsible for your child’s everyday life. It can take the form of a nearly even fifty-fifty split, a primary custodial parent, or sole custody.

2. The Court Tends to Favor Shared Custody

In regard to the types of custody, courts tend to favor joint custody when possible. The extent to which a judge will lean towards joint physical and legal custody varies from state to state. However, the current child custody trend favors both joint legal and physical custody. For legal custody, judges almost always want coparents to have joint custody. This means that you and your Ex will be responsible for decision-making together. If you and your Ex cannot reach needed agreements, like schooling or religion, you can go to court to have a judge rule on the matter.

Additionally, when possible, judges favor shared physical custody. Some states might do this by attempting to have joint physical custody with as close to equal time as possible. This outcome is sometimes logistically impossible. Therefore, in contrast, some courts might determine that there will be one primary custodial parent, and the non-custodial parent will have generous visitation. Overall, the court does not want to deprive any parent of contact and a relationship with their children.

Does this ever happen in your house?
Check out “5 Must Do’s When Your Child Refuses to Visit Their Father”

3. Know When to Give and Take

Along the lines of joint custody, when setting your expectations and desires for your custody arrangement, it is important to understand whether a compromise is possible for parenting time. Courts will start with the assumption that it is in your child’s best interest to have a relationship with both parents. Therefore, having sole legal or physical custody of your children will likely be an uphill battle and require a higher standard to obtain. 

First, you must consider the reason why you are requesting sole custody. If you cannot stand to work with your Ex or are trying to punish him, your battle will likely be futile and frustrating. The court will probably not be swayed to grant sole custody solely by the inability to coparent effectively. However, if you have concrete reasons for having sole physical or legal custody, you can bring these reasons to the judge. Based on all evidence presented, the judge will decide what custody arrangement is best for the children. Just be mindful that the court will always rule in what it determines is in the best interest of the child, and without convincing evidence, that presumption will be some form of coparenting.

Go deeper with what is and is not possible regarding child custody. Read “Best Advice on Custody for Divorcing Moms.”

4. Child Support and Custody are Not Linked

One area of divorce and child custody that is often confused is the relationship between child support and custody. Many states follow a rigorous, strictly set calculation to determine child support payments. Child support is calculated on many factors, including, but not limited to, both parties income, the child custody arrangement, and the child’s specialized needs. These calculations and guidelines are very state-specific. While courts consider custody arrangements in child support determinations, there are situations when a parent may be required to make child support payments even if they have joint or primary physical custody. Overall, the court determines that child support and custody or visitation are separate entities.

5. When Can You Withhold Parenting Time from your Ex

There are very few instances in which you can withhold parenting time from your Ex. Even if your Ex is not complying with maintenance or child support, that is not a valid reason to neglect required parenting time. Issues involving alimony or child support are entirely separate matters from child custody and parenting time. The only time you might be able to restrict access is if you have a reasonable suspicion that your child’s safety is at stake. If this were the case, many states would have you file an emergency motion to alter child custody or parenting time.

If you’re divorcing a Narcissist, you’ll want smart steps for going forward as coparents.  Read “41 Things to Remember When Coparenting with a Narcissist.”

If your current custody arrangement no longer works for you or your children, you must follow the proper procedures for altering the agreement. (For more information on how to change your custody order, read this article “How Can a Court Custody Order be Changed?”

6. Make Sure you Understand What the Laws in Your State Say About Custody.

Finally, one of the most important considerations to understand is that every state has different rules and standards surrounding child custody. Family law is solely a state-specific field of law. Therefore, what may be applicable in one state is completely irrelevant in another. If possible, you should consult with a lawyer knowledgeable about the family law system in your state and county. Researching and thoroughly understanding your state’s laws is essential to ensure the best outcome for you and your children.


The law is a fluid, ever-changing work of art. Therefore, it is important to keep up to date with the current laws and procedures relating to child custody arrangements. Start with these six important points to secure a healthy and practical custody arrangement.



Elizabeth Newland is a third-year law student in Chicago committed to children and family rights. She aims to work in a family-related non-profit firm after graduation. 


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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”

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