How to Win Sole Custody

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: March 20, 2023 References Approved

When you and your partner get divorced or separated and minor children are present, the relevant court will decide who gets custody of the children. Custody may be joint (shared by both parents) or sole custody, where only one parent has custody of the children and the other parent has visitation rights with the children. Obtaining sole custody is not an easy task, as courts favor joint custody, but it is possible for a court to award sole custody in certain circumstances following a custody hearing.

Part 1

Part 1 of 3:

Gathering Evidence for the Custody Hearing

1
Research your state’s custody law. The law governing custody arrangements is determined by the law of the state in which you live. Therefore, your first step should be to understand the law relating to custody for your particular state, which will outline the factors courts are allowed to consider when making custody decisions.^{[1]
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- You can start with this list of child-custody laws organized by state.^{[2]
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  Research source} You can also find summaries of state custody laws online.^{[3]
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- Consider talking with an attorney in your area with family-law experience to get some advice regarding the specific laws of your state. Many attorneys will offer an initial consultation free of charge.
- You can also search specifically for the custody laws of your state. Type in "child custody laws" followed by the name of your state. Many states offer resources regarding custody law, either through the state's judicial branch^{[4]
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  Research source} or the state's Office of Attorney General.^{[5]
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- Most states use a standard aimed at ensuring that the "best interests" of the child are protected, which takes into account factors like the child's age and individual needs, each parent's ability to care for the child, any history of abuse/neglect, the bond between each parent and the child, and the wishes of the child.^{[6]
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2
Think about the type of sole custody you want. There are two different types of custody: legal and physical.^{[7]
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Research source} Having sole legal custody of your child means that you will be solely responsible for making significant decisions concerning the child's welfare and future, such as decisions concerning education, medical care, and moral or religious development. Having sole physical custody means that your child will reside with, and be supervised by, exclusively you.^{[8]
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- The court can grant either or both of these types of custody to either parent, or determine they should share custody (known as joint custody).^{[9]
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- The type of sole custody you obtain will impact your life and the life of your child significantly, so make sure to take some time to think about what kind of custody you want, and what kind of custody arrangement is best for your child.
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3
Analyze the factors courts consider when making custody decisions. While this varies somewhat based on state law, to win sole custody you must generally show that not granting you sole custody would somehow be harmful to the child (e.g., the other parent is unfit or unwilling to take care of the child for some reason).^{[10]
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Research source} With that in mind, take some time to think about some of the factors courts generally consider when making this determination:^{[11]
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- The age and sex of the child. The judge may hold the view that the younger the child, the more she needs her mother; however, as the child grows older, she may need her other parent to a greater extent.
- The physical and mental health of everyone involved. The court will examine if either of the parents is mentally ill or suffers from a physical condition that may affect parenting.
- The wishes of the child (if the child is of a certain age, usually between 12 and 16). While a child does not get to decide which parent he will live with, the court will generally consider the child’s wishes.
- The child’s adjustment to her home, school, and community. When parents live in different communities, the court may be reluctant to move children who are already well-adjusted to their current home.
- The child’s relationship with each parent, his siblings, and extended family. The court may be reluctant to move a child who has bonded with his siblings into a home where the siblings will not be living.
- Each parent’s work schedule. Work schedules that require a parent to be absent from the home for long hours may not be ideal for a parent seeking custody.
- Which parent is more likely to ensure that the child maintains a relationship with the other parent.
- Which parent has been the child’s primary caregiver. If one parent has done most of the work raising the child, the court may not want to remove the child from that parent’s home.
4
Analyze the factors courts consider when awarding sole custody. Generally, courts prefer awarding joint custody to parents involved in custody disputes to uphold a public policy of frequent and regular contact between a child and both parents.^{[14]
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Research source} If you are seeking sole custody, you must show that any other custody arrangement would be harmful to the child in some way. To establish grounds for sole custody, you will likely have to persuade the court of one or more of the following:^{[16]
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- That the other parent is missing, absent, incarcerated, or has no desire to take part in raising the child.
- That the other parent has a substance-abuse problem.
- That the other parent has a history of domestic or family violence.
- That the other parent has issues with communicating, or that it is unlikely both parents will be able to mutually decide how best to raise the child.
5
Gather evidence that supports you having sole custody. Begin compiling the evidence you have to support your argument that you should have sole custody. Based on the law of your state, use the information you have (1) about factors that the court will consider and (2) under what circumstances a court in your state will award sole custody.
- For example, if the other parent is abusive, compile medical records, any relevant court orders (e.g., a protection order), or police reports so that you can show these at the hearing to demonstrate a history of abuse.^{[17]
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- Or, if the child currently lives with you and makes good grades at school, you may want to use his or her report card as evidence of the child’s adjustment to your home and community. Conversely, if the child currently lives with his or her other parent and has poor grades, you may want to use the report card to show that the child has not adjusted well to the other parent’s home.
- Other types of evidence you might want to use includes: financial information (e.g., income tax returns, salary information, receipts documenting payments made to support the child), residential information (e.g., information about the environment you can provide for the child), and resumes for any experts who will offer testimony that supports you having sole custody.^{[18]
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6
Determine what witnesses you will call to testify. Again, think about each factor that the court will consider in making its custody determination, and decide what witnesses you may be able to call to prove that you should have sole custody. You will want to demonstrate, at a minimum, (1) that you have a good relationship with your child, (2) that you are able to sufficiently meet the unique needs of your child, and (3) that living with the other parent would have a negative effect on the child in some way.^{[19]
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- For example, you might call a teacher, day-care worker, therapist, or doctor to testify that you take good care of your child.^{[20]
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- You could also call anyone who can testify that you have always been the primary caregiver, that the other parent’s work schedule causes him or her to be away from home for long hours, or that the child does not seem to have a relationship with the other parent.

Part 2

Part 2 of 3:

Arguing Your Case at the Custody Hearing

1
Consider hiring a lawyer to help you. Custody battles can be long, complicated, contentious affairs. You will have to navigate relevant state law, prepare your case, and present it before a judge. Enlisting the help of an experienced family-law attorney can go a long way to helping you win your custody case, especially if the attorney has argued custody cases in front of the judge assigned to your case.^{[21]
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- If you do retain counsel, make sure to inform him or her of anything the other parent may be able to use to cast you in a negative light during the custody hearing. Giving your lawyer advance warning allows him or her to better prepare in order to mitigate any potential damage to your case.
2
Depose the other parent in advance. Before the custody hearing, you will engage in the process of discovery. This process allows you time to find out what the other parent plans to say at the hearing, either through his or her own testimony or that of a witness. During this process, you can question the other parent at a deposition, which is a legal proceeding that allows lawyers to ask questions of witnesses outside of court before the actual hearing. Your goal is to better prepare for the hearing, so try asking the following types of questions:
- Do you believe that you are the best parent to have custody? If so, why?
- Do you believe that I am a bad parent? If so, why?
- Who do you intend to call as a witness?
- Do you believe that it is in your child’s best interests for you to have sole custody? If so, why?
3
Ask the judge to appoint a guardian ad litem ("GAL"). A guardian ad litem is an individual who is a neutral party (such as a social worker) with experience determining what circumstances provide the best environment for a child.^{[22]
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Research source} You can ask the judge (by filing a motion) to appoint a GAL for your case to investigate the child's home life, talk with your child, interview relevant parties, and ultimately present a recommendation for where your child should live.
- Before you do this, however, make sure you have a strong case, and the independent investigation will result in evidence that is favorable to your application for sole custody. While judges are not require to follow the GAL's recommendation, many place great emphasis on a GAL's report.^{[23]
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- The judge may independently appoint a GAL. If so, make sure to cooperate with his or her investigation.
4
Prepare your witnesses. Come up with a list of questions that you (or your lawyer) will ask each of your witnesses and go over the answers with them. Make sure they are able to answer the questions in a way that casts a favorable light on you without sounding vindictive, rehearsed, or as if they are taking sides.^{[24]
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- You may also want to go over courtroom decorum with your witnesses. Things such as how they are dressed, what they call the judge, and the language they use can all affect your case. Conservative, work-casual clothes are best, they should refer to the Judge as “your Honor” or “Judge,” and should never use any foul language.
5
Present your case. Using the evidence you have gathered and the witnesses you will call, either you or your attorney will present your case before the judge at the custody hearing. Keep in mind the factors applicable to custody law in your state, and make your case for sole custody as best you can by touching on as many of these factors as possible through evidence or witness testimony.
- Be sure to cross-examine any witnesses the other parent calls to reframe their testimony in a light more favorable to you.^{[25]
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  Research source} Try, however, to only ask questions to which you know the answer (and that the answer benefits your side).

Part 3

Part 3 of 3:

Considering Alternatives to Judicial Intervention

1
Try to reach an agreement with the other parent. Before involving the legal system in your family's affairs, it is advisable to try to come to a mutual understanding/agreement with the other parent concerning what will happen to your child after a divorce or separation.^{[26]
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Research source} A court will usually accept this agreement, so long as its terms are in the best interests of the child.
- Even if you plan to eventually get the courts involved, try this approach first. This will give you the most control over your child's future (and avoid having a result you might not like imposed by the court) and, in the event you do have to go before a judge, you can bring up the fact that you at least tried to resolve the dispute on your own, showing you care about your child's wellbeing and demonstrating your ability to compromise.
2
Negotiate effectively. While discussing custody with the other parent, it is important to not let your emotions get the best of you. This process, by its very nature, is a contentious one, and losing your cool will not help anyone. Remember that your goal is to make sure your child's needs are met in the best possible way. With that in mind, try to remember the following during the negotiation process:
- Remain sensitive to your child's needs. This is not about you.
- Try to understand the other parent's position and concerns. Thinking about things from the other person's perspective will help you ultimately reach an agreement that works for everyone.
- Know what the law permits. Custody laws vary by state, both in what types of arrangements are allowed and what factors can influence the court when making a custody decision. Keep these in mind when trying to reach an agreement.
- Focus on common ground. Likely, both you and the other parent want what is best for your child. Keep the discussion away from contentious issues or divisive language and instead focus on obtaining an agreement that works for you and your child.
3
Try a custody experiment. If you and the other parent can't reach a custody agreement right away, try proposing a trial run for a particular custody arrangement. Establish that, for the next month or so, the two of you will try a specific arrangement (equal time with both parents, weeks with one and weekends with the other, etc.) and then see how it works out. At the very least, this can provide real-world evidence on which to base future discussions.
4
Consider mediation. Sometimes in the event of a custody dispute, the relevant court will refer the parents involved to internal court mediation services.^{[27]
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Research source} This comparatively informal process gives both parents a chance to sit down, communicate, and reach an agreement acceptable to both parties without involving a formal hearing or trial.
- You can participate in mediation with or without a court order to do so.

Warnings

This article, while informative, is not a substitute for legal advice. You should consult with a licensed attorney with relevant family-law experience being doing anything that may affect your legal rights and obligations.

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