How is a Custodial Parent Chosen?

custodial parent

Assuming both parents are responsible adults who are physically and mentally able to care for their kids, the courts will often split legal custody equally. This means that they can both make decisions about their children’s upbringing when it comes to their medical treatment, religion, values, and education. Barring certain events or abusive or dangerous behavior, family courts prefer joint custody agreements. The main priority is the best interest of the child, even if the parents do not see the value in having a co-parenting relationship. However, the matter of physical custody and which parent will be the custodial parent is different entirely.

The family law attorneys at C. Alvarez Law explain what physical custody is, what a custodial parent is, and how a custodial parent is chosen.

What is Physical Custody?

When one parent has physical custody, they are the parent who the children live with the majority of the time. You can have 50/50 legal custody but have the children live primarily with one parent. This can be due to a number of factors that we will touch upon.

When it comes to types of physical custody, the court wants to make sure both parents see their children. Sometimes this isn’t always feasible. There will be a court-officiated agreement setting up visitation rights, communication rights, and opportunities for the co-parents to make adjustments to the agreement. How often physical custody changes can be on a regular basis if the parents are able, or they can swap custody for long periods of time.

What is a Custodial Parent?

The parent who the children are primarily spending their time with is the custodial parent. When children are only visiting one parent for a weekend or a short trip, that parent is not the custodial parent. If their physical custody agreement has the children splitting their time with each parent for long periods of time, say where they spend the summer with one and the school year with the other, the rights as the custodial parent switches between them. 

The custodial parent has the right to make decisions for the children when the moment calls for it. They cannot change long-term parental decisions without the other parent if they share legal custody.

How Do Courts Decide on Who Will Be the Custodial Parent?

There are several factors that the courts that into account when determining which parent should be the custodial parent. For example, in most cases, if one of the parents is determined to have been abusive during the marriage to their partner and/or their children, they will likely not be the custodial parent. Such abuse does require a significant degree of proof. Other factors include:

Parental Ability

The first thing that courts investigate is the ability of both parents to care for and be there for their children. This means taking into account their income, work hours, current and future housing situation, and mental stability. 

If one parent is clearly more capable of physically caring for the child, this is a huge step in their favor. If one parent is only marginally more capable, the difference is less important. 

The assistance the parents may receive from their respective halves of the children’s families is also taken into account (i.e., grandparents, aunts, uncles, and other relatives of the children).


In many cases, neither parent is able to keep the family home after their divorce. This is because they can’t agree on who should have it, or neither can afford to keep it. This often means both parties must move. 

The court will then take into account where each parent will live. If one is planning to stay in the children’s current school district or move into a significantly safer neighborhood, the courts will consider this heavily.

Child’s Preference

If both parents are showing near equal ability to be the custodial parent, and cannot share physical custody, the court will sometimes in rare circumstances, will consider communicating with the children themselves. This can sway the court decisions if they cannot find a clear choice, but otherwise, the children’s opinions are not typically heavily considered.

The older the children are though, the more their opinion is valued. This is especially true if there have been accusations of abuse towards either parent.

Contact the Child Custody Attorneys at C. Alvarez Law For Help

During your divorce, the most important thing should be the well-being and caretaking of your children. Everyone needs to do what’s best for them, but the courts don’t always know what’s best for your children. You’re their parent and know more about what is going to help your children through this trying time than strangers.

To help convince the court of what’s best and who should be the custodial parent, you need an experienced and compassionate attorney to help you. Contact the child custody attorneys at C. Alvarez Law for the support you need today.

The following two tabs change content below.

C. Alvarez Law

C. Alvarez Law is a Central Florida-based law firm that helps families find resolutions to their most complex family law issues. We are dedicated to providing the support and advice you need for a positive outcome and a better life. Before you can move on with your life, you need closure. Our firm is diverse, energetic, and passionate about delivering this for the clients who have placed their trust in us. Let’s work together today to find a better tomorrow.

Latest posts by C. Alvarez Law (see all)