child custody

Child custody issues most often arise in divorce and separation proceedings. The court that has jurisdiction over the proceedings also determines custody arrangements. Like other aspects of family law, states control most law in the field of child custody. By default, parents share equal guardianship rights over their children, and each has an equal claim to custody when they separate.

Courts determine custody based on the best interests of the child standard. This analysis considers the wishes of the parents, the wishes of the child (depending on age and maturity), the child’s relationship with each parent and with siblings or other significant individuals in the household, the child’s adjustment to home, school, and their community, and the mental and physical health of all parties involved.

The parent granted custody controls major decisions regarding the child’s upbringing, including education, health care, and religious instruction. Courts may award several forms of custody:

  • Temporary custody grants control during the divorce or separation process.
  • Exclusive custody places all custodial rights with one parent; the other parent may receive visitation, which can be supervised if necessary.
  • Joint custody allows both parents to share decision-making responsibilities. 

Many states presume joint custody is in the child’s best interests unless evidence shows otherwise. In some circumstances, courts may award custody to a third party, often a grandparent or other relative. While courts may separate siblings, they generally prefer to keep siblings together to preserve family bonds.

Visitation Rights

When exclusive custody is granted to one parent, the non-custodial parent generally retains visitation rights unless extraordinary circumstances show visitation would harm the child. Even if a decree does not expressly provide for visitation, the law implies this right absent a clear prohibition. Restrictions or denial of visitation typically occur when there is evidence of abuse, severe mental illness that endangers the child, or other compelling concerns. Incarceration alone does not automatically bar visitation. Courts retain authority to enforce custody and visitation orders. A parent who refuses to comply may be held in contempt of court.

Federal and State Authority

While child custody is primarily governed by state law, federal statutes such as the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) and the Uniform Child Custody Jurisdiction and Enforcement Act (adopted in most states) regulate interstate custody disputes.

Constitutional Context

The U.S. Supreme Court has recognized that parents have a fundamental liberty interest in the care, custody, and control of their children. In Troxel v. Granville, 530 U.S. 57 (2000), the Court struck down a state law that allowed courts to grant broad visitation rights to third parties over a parent’s objection, holding that fit parents are presumed to act in their children’s best interests. Earlier decisions, such as Santosky v. Kramer, 455 U.S. 745 (1982), established that the state must meet a high standard of proof before terminating parental rights, reinforcing the constitutional protection of the parent-child relationship. These cases continue to guide courts in balancing parental rights with the best interests of the child.

Federal Material

U.S. Constitution and Federal Statutes

Federal Regulations

State Material

Additional Resources

[Last reviewed in September of 2025 by the Wex Definitions Team] 

Keywords

Wex