Q: My soon to be ex-wife and I are going through a divorce, and I want to fight for custody of our two children. When we were together, I feel like we took equal care of the children, although most of our marriage she was a stay-at-home mom. We’ve been living separately since October of 2021, and since then we haven’t really followed a set parenting plan. I get to see the children most weekends and sometimes during the week. I just don’t think it’s fair that my ex should automatically get custody, just because she’s the “mom.”

A: You’ve included some great information that I need, but there are a couple of important questions still outstanding. I’m going to do my best to frame this answer based on the information provided.

When you ask about custody, usually people mean custody and parenting time. For purposes of this column, I’m only going to talk about custody. It’s useful to understand the legal difference between the two.

When you think about custody, think about decision making. The most common situations for decision making and custody come about through the following: school, religion and major medical decisions. When there is a disagreement between the parents on one of these issues, the custodial parent is the decider.

Let’s take some examples. One parent wants to homeschool the children and the other parent wants them to go to private school. The legal custodial parent gets to decide.

Typically, custody is either sole (one parent decides) or joint custody (decisions shared between both parents). If the parents start out with joint custody and are not able to get along on important decisions, one parent may file to modify custody to be determined sole custodian.

In your case, the court has not yet made a custody decision, so we are not attempting to modify custody, which has its own set of considerations.

Most of the law on custody is contained in one statute. One thing that statute says is “No preference in custody shall be given to the mother over the father for the sole reason that she is the mother …” So in this sense, the court should not give a preference to your soon-to-be ex simply because she is the “mom.”

The court considers certain “factors” when deciding who will get custody. The primary consideration for the judge during custody cases is what is the best interests and welfare of the child. Keep in mind, this is not what is in the best interests of the parents, the state, society or the court. Only the child(ren).

Factors considered in determining custody of child.

(a) The emotional ties between the child and other family members.

(b) The interest of the parties in and attitude toward the child.

© The desirability of continuing an existing relationship.

(d) The abuse of one parent by the other.

(e) The preference for the primary caregiver of the child, if the caregiver is deemed fit by the court.

(f) And the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of behavior of abuse against the parent or a child and that a continuing relationship with the other parent will endanger the health or safety of either parent or the child.

When looking at these factors, the court doesn’t look at any one factor in isolation. If a parent has committed abuse there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse.

Typically, the court considers these factors under a current analysis and/or a recent analysis. The term primary caregiver (or primary parent) usually refers to the parent who has provided more care for the child and with whom the child has lived a majority of his or her recent life. All other factors being relatively equal, considerable weight is given to which parent has been the primary caretaker.

The primary parent is the parent who handles (or who has handled) most of the decision-making and caretaking of the child. In some situations, there is no clear-cut primary parent, because the parents divide the parenting duties approximately equally. In that case, the court will turn to the other factors to determine the best interests of the child.

Therefore, the parents’ behavior as parents prior to the custody case as well as their behavior during the pendency of the case largely determines who will be granted sole legal custody.

Custody and parenting time are complicated areas of the law. Please talk to an attorney to discuss your options and decide the best way to move forward in your particular case.