Determining child custody is one of the major roles of family law courts. Family law custody is normally significant only in instances in which there are two parents, whom each want custody of the child in question.
When one parent does not want custody of the child, while the other does want custody, then the issue of family law child custody can usually be settled out of court. Indeed, in many divorce agreements made out of court, and simply ratified by the court, family law custody is determined as the parents see fit. If no such agreement can be made, however, then the determination of family law child custody will usually fall to the court.
In determining which parent should be awarded with family law custody, the court will primarily be focused upon the issue of the child's best interests. The court will attempt to determine with which parent the child will be best off, and will award family law child custody accordingly. This is not an easy determination, of course, and the court may very well default to determining family law custody based on which parent was the primary caretaker of the child.
The primary caretaker is usually the parent that interacted with the children most often in a care-taking role. For example, the primary caretaker would likely be the parent that spent the most time dressing the child, preparing meals for and feeding the child, arranging doctors' appointments for the child, and teaching child to read or write.
The primary caretaker is often, by default, the party with whom the child will be better off, due to the psychological bond that can grow between a child and the primary caretaker parent. Thus, the court will likely award family law child custody to the primary caretaker in instances when it cannot use other criteria to make a determination.
The court may also become involved in determining family law custody in situations in which the parents were not married, but the father wants custody of the children. Normally, if the parents were not married, than the unwed father does not have many rights at all to the children. Such a father would not be very likely to win family law child custody from a court if the mother is a good mother.
In order to win family law custody, an unwed father would likely need to prove that the mother is not a good mother, whether because she is incapable of taking care of the child in some fashion, or because she neglects the child. Such a proceeding might give an unwed father some rights to the child, such that he might have a say in the child's future, even if he did not win full family law child custody.
The family law child custody awarded by courts does not need to be wholly for one parent or the other. The court might award legal custody, while not awarding physical custody, for instance, such that the parent awarded legal custody can make decisions for the child, even if he or she does not physically have custody of the child. The court may award family law custody in the form of sole custody, however, giving only a single parent full custody of the child. If you need legal advice and assistance, contact family lawyers.