How to Get Primary Custody

By Stephanie Reid

Updated March 30, 2020

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If you are navigating the divorce process with children, it is likely that you are very concerned over the prospect of losing primary custody of your children. Depending on your situation, custody and visitation are arranged either through an agreement between you and your partner or, in the event both parties cannot agree, by the court following a hearing. While the statutory language varies by state, courts in all states are required to make decisions involving children by considering each child’s best interests. If you are a nonparent seeking primary custody of another person’s child, you will be required to meet the best-interests standards as well as prove to the court that the child’s parents are unfit or unable to exercise primary custodial rights.

Types of Custody

There are generally two types of custody: physical and legal. Your state may use alternative terms like primary placement or primary residential custody. Physical, or primary, custody is held by the parent or individual with whom the child lives more than 50 percent of his time. The person with primary custody is responsible for providing shelter, food, clothing and a bed for the child. Legal custody refers to the responsibility for making pivotal decisions about the child including those relating to religious upbringing, medical care and education. Sole custody in either category means only one person holds the custodial rights, whereas joint custody means two or more people enjoy custody over the child.

Custody and Visitation Agreement

The least contentious way to work out primary custody is to make arrangements in a custody and visitation agreement. The agreement will contain provisions granting you primary custody over the child along with a visitation or parenting time schedule for both parents to follow. Taking the responsibility as primary custodian often imposes a significant financial burden that should be addressed in the agreement. For instance, if you agree to take responsibility for the child’s clothing and food, the other parent can agree to pay for health care premiums or part of the rent or mortgage.

Best-Interests Standards

If the other parent does not agree to grant you primary custody in a custody and visitation agreement, you must then file a petition for primary custody with the family court in the jurisdiction where the child currently resides. In your petition, you must state specific facts that support your assertion that granting you primary custody is in the child’s best interests. Specifically, the judge will look for a strong relationship between you and the child, as well as any other children or adults living in your home. You must be free from drug or alcohol addition, have means to financially support the child, and have a clear criminal background – specifically relating to domestic violence. If the child is old enough to testify, he can share with the judge his wishes regarding where he would like to live. The court will also consider the mental and physical health of all parties involved, as well as the child’s ability to adjust to your home, community and the school he will be attending.


To meet the best-interests standards, you should compile evidence to support the assertion that you are the parent more fit to serve in the custodial role. For instance, you might request teachers, caregivers or other individuals closely involved with the child to submit an affidavit to the court detailing the child's adjustment to the community or his relationship with you versus the other parent. You may also introduce school and health records detailing the child's grades and physical well-being. If you are concerned about the other parent's activity, you could petition the court to compel a drug test. If the other parent is unable to financially support the children, you can introduce evidence of this such as his tax returns or employment history.

Nonparent Primary Custody

A petition by a nonparent for primary custody of a child is decided in much the same way as a petition by a parent, except that the court begins with the presumption that it is in the child’s best interests to remain with his father or mother. If you are a nonparent, you must state specific facts to assert not only that it is in the child’s best interests to live with you, but that the child’s parents are unable, unfit or unwilling to assume the role as primary custodian. You must also submit evidence to the court supporting both assertions. This is accomplished through the introduction of facts pertaining to the parents’ substance abuse, abandonment or neglect of the child. The court may also grant you nonparent custody in the event either parent is facing illness or must be absent for military or work duties, both of which require proof via affidavit or testimony by a treating physician or a superior, respectively. If the court grants you primary custody of the child, this does not terminate the parents’ rights; however, it could serve as evidence to support a petition to terminate parental rights in the future, which may be necessary in the event you desire to adopt the child.