Child Custody & Primary Care

By Beverly Bird

Updated March 29, 2020

Mother putting a plaster on her son's knee (10-11)

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When parents divorce, they often find themselves bombarded with a lot of confusing legal terms when all they really care about is which of them their child will live with. "Primary care" is one of these terms. It refers to which parent the child will live with after the divorce; who can best offer primary care for the child is also a factor that judges take into consideration when deciding custody.

Best Interest Factors

Courts look to a list of factors that make up the standard known as the best interests of the child when determining which parent a child is most likely to thrive with after spouses divorce. The factors vary a bit from state to state, but many share common themes. Technically, the judge is supposed to weigh all of the state's legal factors collectively when comparing one parent against the other. No one factor is intended to carry more importance than another, but this isn't to say that judges' personal feelings don't enter into the decision to some extent. Most states' best interests factors include references to which parent was historically the child's primary caregiver during the marriage, and judges sometimes give this factor a great deal of weight.

Primary Caregiver Presumption

The primary caregiver presumption included in best interests standards refers to which parent was most hands-on with child care when the family was intact. It's based on the assumption that this parent is most suited to have physical custody when parents part ways. If you were typically the parent who took your child to the pediatrician, oversaw homework, packed his lunch for school, picked him up from school early when he had a tummy ache, and ferried him to Boy Scouts or soccer, you were the primary caregiver.

States may phrase this factor differently – for example, Oregon's best interests statute cites the benefits of maintaining the "existing relationship" for the child. Michigan law mentions the "desirability of maintaining continuity." In any terms, if a judge gives this factor more importance than other factors, it can tip the scale for custody in your favor.

Bias Against Breadwinners

The primary caregiver presumption has come under some criticism for being biased against the breadwinner of the family. This is traditionally the father, but not always. If you have an advanced degree and you've devoted yourself to your career and earning money to sustain the family, this can work against you if custody is contested in your divorce. It means you weren't available to personally attend to many of these day-to-day parenting duties. If your spouse works at home and he was therefore the primary caregiver when your marriage was healthy, judges can consider this when deciding custody as part of your divorce. It doesn't mean you're less of a parent; it just means your child is more accustomed to having his other parent tend to his needs. Granting physical custody to you might not safeguard consistency in your child's life or maintain his existing relationship with his other parent as it was before your divorce.

Primary Residential Custody

The primary care parent after divorce is the one the children live with most of the time – the custodial parent. This legal language can also vary a bit from state to state – some states refer to this spouse as the parent of primary residence – but it means the parent is the primary caregiver because the children's home is with her. The other parent has visitation rights. Physical custody can be shared or joint when children divide their time between both parents' homes, but courts typically only order joint residential or physical custody when parents request it in a settlement agreement or through mediation. Judges are typically reluctant to order such an arrangement over one parent's objections because such contention is not usually in the best interests of the children.