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Submit Close Considering Divorce? We've helped 85 clients find attorneys today.Child custody is one of the most emotional and difficult issues when parents split up. It's also a topic with a lot of preconceptions, strong opinions, and misinformation. Whatever was true in the past, the general outlook has improved for fathers who want shared or even 50/50 custody of their kids. In any particular case, however, the chances of getting custody can vary wildly. Read on to why.
Legal vs. Physical CustodySome of the statistics and studies on custody outcomes don't distinguish between legal and physical custody. But there are significant differences between each type of custody, both in terms of what they mean and how they're usually split (or not) between parents. Legal custody refers to parents' rights to make important decisions about their children's upbringing. Physical custody deals with where the children will live and how much time they'll spend with each parent—which is why some states call it parenting time, time-sharing, or similar terms.
Most courts prefer that both parents have joint legal custody, unless one of them isn't capable or can't be trusted to make sound decisions for a child's welfare. Even when parents can't seem to agree about anything, judges may award joint legal custody but split up their areas of decision-making authority, so that one parent makes medical decisions while the other decides where the child will go to school.
Because of the strong preference for joint decision-making authority, most custody battles are focused on physical custody—which parent will have the kids most of the time, or whether the parents will have a 50/50 custody split. This article focuses on that issue.
Many people assume that mothers are more likely to win custody battles—that judges will usually award primary physical custody to the mother, while the father will only get visitation on some weekends and holidays. That was largely true during much of the 19th and 20th centuries. The belief that women should have sole or primary physical custody of children after divorce was rooted in traditional gender roles in families, with women being primarily responsible for child-rearing and homemaking.
As divorce rates rose and more women entered the workforce, those traditional roles gradually started to change. Custody outcomes eventually began to change as well.
Despite some changes in traditional family roles, many mothers are still their children's primary caregivers—especially when kids are very young. And it's still true that children of divorced parents are more likely to live primarily with their mothers than their fathers. According to data compiled from the U.S. Census Bureau, in 2018 about 80% of custodial parents were mothers. But as we'll explain, that does not mean that four out of five men lose custody battles in court.
An online search will turn up wildly contradictory claims and statistics about the percentages of men or women who win custody battles. If you dig deeper into the research, however, the picture is more complicated.
Since the late 1980s, trends in child custody have been moving away from the traditional setup of sole physical custody for the mother, with relatively limited visitation for the father. However, the shift has been toward a preference for shared custody rather than awarding more fathers sole custody.
For instance, one study based on court records in Wisconsin showed that awards of sole custody to mothers dropped almost in half between 1986 and 2008 (from 80% to 42%), while the proportion of parents with some form of shared custody jumped from 8% to 45% (27% with 50/50 custody). At the same time, the percentage of cases where fathers received sole custody stayed about the same. Another study (based on interviews with legal professionals and standard parenting schedules recommended by some courts) appeared to show that U.S. fathers get an average of 34% parenting time with their kids, with significant differences from state to state—ranging from 50% to less than 25%.
The laws in many states explicitly say that it's in a child's best interests to have frequent and continuing contact with both parents, unless that would be harmful to the child.
These numbers on custody outcomes reflect changing ideas about family roles and what's best for children, as well as policies and laws in the states. For example:
Most states require judges to consider certain factors when they're deciding which custody arrangements would be in the child's best interests. Those factors typically include the question of which parent has been the child's primary caregiver, whether the laws use those actual words or other terms. For example:
Of course, many contemporary fathers take an active role in their children's day-to-day care. The Pew Research Center has reported that fathers now represent nearly one in five stay-at-home parents. But even though most married mothers work outside the home, women are still more likely to take on the role of primary caregiver for their children, especially when the kids are little. When that's the case, they're also more likely to get primary physical custody after divorce, because judges typically must consider children's need for stability and continuity.
If you're heading for divorce, you can take several important steps to increase your chances of getting the amount of parenting time you want with your kids, whether primary physical custody or equal shared parenting. These steps apply whether you're hoping to reach a custody agreement or expecting a long legal custody battle. Even though few custody disputes end up in court, you'll have a leg up in settlement negotiations if you can show that you would have a decent chance of winning at trial, based on the law in your state.
It's worth pointing out that all of these tips apply to mothers and same-sex parents as well as fathers.
If you haven't already been actively caring for your child or children, now's the time to start. As discussed above, judges will consider how much you've taken on child-rearing responsibilities, such as:
As much as you can, keep a journal or calendar to document when you've done these parenting tasks, as well as when either parent has traveled for work or otherwise been away from the family.
Even if you weren't able to be involved in all of these parenting activities before, you might be able to convince a judge (or your co-parent during settlement negotiations) that you've taken concrete, serious steps to change that—such as by altering your work schedule or even changing jobs if necessary. Some states, such as Wisconsin, specifically require judges to consider any lifestyle changes that a parent plans in order to have as much parenting time as possible. (Wis. Stat. § 767.41(5) (2024).)
When you're having serious problems in your marriage, it's understandable if you want to leave the home. But if you move out and leave your kids behind, it will be more difficult to remain actively involved in day-to-day parenting responsibilities. And because of the focus on children's need for stability, a judge is more likely to keep the status quo after divorce—meaning that the parent who stayed behind in the family home with the children is more likely to become the primary custodial parent.
Of course, staying in the family home isn't always a realistic option—and it's not good for children to be in a home environment with a lot of fighting between their parents. If you have to move out, do your best to stay somewhere close so that you can be as involved as possible in your children's daily lives.
Another factor that usually plays a role in judges' custody decisions is the type of home environment that each parent can provide. If you want shared or sole custody, be prepared to show that you'll have an appropriate home for your children. That includes the physical space of the house or apartment, as well as the habits and lifestyles of anyone else who lives there or frequently visits. Ideally, it means a bedroom for your children in a relatively safe neighborhood. Here again, the focus on children's need for stability means that you'll be in a better position if you'll be living close to your kids' old home, so they can stay in the same school, participate in their usual after-school activities, and see their friends.
Of course, it costs more to maintain two separate households for children than when the family lived together. Many divorced parents simply can't afford it—which is probably why some research shows that parents with higher incomes are more likely to have shared custody arrangements.
Some states have addressed this problem by including adjustments in their child support calculations to account for shared parenting. With these adjustments, parents who owe child support may end up paying less to help make up for the increased costs of having their kids for a substantial amount of time. Even if your state doesn't have a built-in adjustment for shared parenting, all states allow judges to deviate from the standard child support calculation when it would be unfair. So you could argue that the increased costs of shared custody are a good reason to lower your support payments.
Another common consideration that factors into judges' custody decisions is each parent's ability to cooperate and foster their children's relationship with the other parent. As much as you can, set aside your anger or resentment when dealing with your soon-to-be ex—at least when it comes to parenting. Don't badmouth your co-parent in front of your kids, and do everything you can to protect them from any disputes about custody or the divorce in general.
And if you're dealing with a co-parent who can't follow this advice, try to document those negative interactions. For instance:
Not surprisingly, judges always want to make sure that children aren't exposed to domestic violence, child abuse, or neglect. Judges may also consider a parent's substance abuse in custody decisions, particularly if it affects the child's physical safety or well-being.
Do what you can to gather evidence supporting any suspicions of abuse or other behavior that's harming your child. Keep notes, take pictures, and find witnesses if possible.
If you or your spouse has already filed for divorce or legal separation, you may request temporary child custody orders that give you as much time with your child as possible. That way, by the time of your final hearing, the judge will be more likely to continue current arrangements that are working out well.
In some states, courts automatically issue temporary orders in divorce cases to prevent parents from taking their children out of state or the country without consent from the other parent or the court. If these orders aren't automatic in your state, be sure to request one.
If you hope to agree on a parenting plan but are having trouble working out the details, you might try custody mediation. Mediation is usually much less expensive than a court battle—and less stressful on the whole family. With the help of a trained mediator, this is a good way for parents to come up with solutions that work well for both of them, as well as their children.
You don't have to have a lawyer when you're participating in mediation, but you may choose to get preparation and advice from an attorney. With or without a lawyer's help, be prepared for your mediation session with clear goals and all the information you can gather to support the parenting plan you want.
If mediation doesn't work—or you already expect a difficult custody fight—you should speak to a lawyer as soon as possible. An experienced family law attorney can give you advice specifically tailored to your situation, recommend a custody evaluator when that's appropriate, and help protect your interests in court if and when it comes to that.