Divorce & Child Custody: How Custody Works in Divorce

When parents decide to end their marriage, they must address divorce and child custody.

Divorcing with children adds more complexity to an already-complex situation. You'll have to consider how the divorce will impact your children as well as yourself.

Though divorce and child custody are often addressed together, there are some differences you'll want to know before starting a case. Here is how custody works in a divorce.

Do divorce and child custody get decided in one case?

Parents typically ask for divorce and child custody in one petition. That way, they don't have to fill out two sets of paperwork, and the judge can give them decisions for both matters after one final hearing. Plus, deciding the issues together keeps the case in one court.

In the U.S. and some other countries, parents must have child custody arrangements (either through a court decision or an agreement) in order for the court to grant a divorce. This generally results in the court giving orders for both issues at once.

How is a divorce case involving custody different from other divorces?

Divorce is never easy to endure, but divorcing spouses without children may have fewer hurdles to jump through than parents getting orders for divorce and child custody.

For example, parents who are divorcing may have to complete a parenting class. In contested cases, they may have to undergo a months-long custody evaluation and gather evidence to support their case for custody.

Spouses without children don't have to worry about whether the terms of divorce they're asking for are in the best interest of the child (more below). They may get a divorce judgment more quickly since they have one less issue to consider.

Can I address divorce and child custody separately?

Yes, in some areas. For example, in New York, married parents can petition the court for child custody before starting a divorce case. This is common for parents who want orders about raising their children while they're separated.

Regardless of where you live, you might agree only on custody or only on property division, leaving just one for a judge to decide.

Divorce mediation versus custody mediation

Divorce mediation addresses all divorce matters in dispute. Custody mediation focuses on custody and other child-related matters.

You might handle divorce and child custody in the same mediation, but many courts (like ones in New Jersey) won't let you talk about financial matters in custody mediation they provide.

Custody mediation is often shorter than divorce mediation since there are fewer issues to discuss. Both types are handled by qualified family law mediators.

Divorce settlement agreements versus parenting plans

It's highly recommended that you at least try to settle with your spouse. Negotiating an agreement one-on-one, with the help of a lawyer or an alternative dispute resolution professional, can save you a lot of time and money.

Divorce settlement agreements cover every issue divorcing spouses agree on.

Parenting plans detail parenting arrangements, including the type of custody parents will have, a visitation schedule, and, in some jurisdictions, child support. If you don't agree, you can each suggest a parenting plan to the court to show what you believe is best for your child.

Many parents choose to include a parenting plan in their divorce settlement agreement. This gives them more space to explain their agreed-upon parenting terms.

Alimony versus child support

Alimony is a post-divorce payment regularly made by one former spouse to another. It's also called spousal support. The intent is to help the former spouse maintain the same lifestyle they had during the marriage. Alimony is only awarded if the court finds one spouse was financially dependent on the other and cannot support themself — or if the spouses agree to it.

Child support is a regular payment made by the parent who spends less time with the child to ensure they're fairly contributing financially to the child's needs. It is paid to the parent with a lesser income if parents spend nearly equal time with the child. Unlike alimony, child support is almost always awarded.

Best interest of the child

The best interest of the child is a standard that ensures custody decisions and agreements prioritize a child's well-being. Every location takes into account different factors when determining what's in a child's best interest.

When deciding custody of children in a divorce (or outside of a divorce), the judge weighs each parent's qualities to see who is best to provide the child's primary home. When parents are on equal ground, something like a flexible work schedule can sway the judge in favor of one parent, or the judge may award joint custody.

The best-interest-of-the-child standard applies to agreements as well. If you want your agreement to become a court order, a judge will review it to ensure the terms prioritize the child's best interests.

Will my child's opinion matter in the case?

Some jurisdictions require judges to consider the preference of the child when making custody decisions — if the child is old enough to give their opinion.

The judge may interview the child in a private setting without parents present. This way, the child can speak their mind without feeling pressure from either parent. It's rare for a child to testify during a hearing or trial, but it can happen.

The court can appoint an attorney ad litem or a guardian ad litem to gain further insight into the child's opinion.

Attorneys ad litem represent what the child wants, while guardians ad litem represent the child's best interest. Both conduct investigations, interviewing the child and those close to them, and visiting each parent's home to ensure the living situations are safe for the child.

Managing child custody after divorce

When the divorce process ends, co-parenting goes on. After divorce, it's time to focus on making your child custody arrangement work smoothly.

Above all, think about your child. You may be exes now, but you're also co-parents, so you have to maintain a functional relationship. Even if you don't like each other, strive to keep interactions civil for your child's benefit. You might agree to communicate only about your child and not discuss other aspects of your lives.

To simplify things, you can use a co-parenting app like Custody X Change. This keeps your parenting communication in one organized place (i.e., not with your text messages). Beyond providing a space for messaging, co-parenting apps help you keep track of your custody schedule, log expenses and reimbursements, store information about your child, and more.

If you ever need to change your parenting arrangements, you can agree to small adjustments without returning to court. But if either parent decides they no longer like the change, you'll have to revert to the court order.

For major changes to your parenting plan or schedule, have the court update your order. This is generally fairly easy when parents agree on the change. When the other parent disagrees, you'll have to prove that the change is necessary for your child's well-being.

Use technology to prepare for divorce court

Preparation is key to getting a favorable outcome in your divorce and child custody case.

The Custody X Change app has all the tools you need to deal with custody of children in a divorce.

With a parenting plan template, custody calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever issues may arise during your case.

Take advantage of our technology to stay on top of all the moving parts of your case.