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5. What does the law consider when deciding custody and visitation?

The law says that judges must give custody according to what is in the best interest of the child.
Judges look at the children’s health, safety and wellbeing to decide whether to give custody to one or
both parents. Courts also consider any history of abuse by one or both of the parents.  

Courts do not automatically give custody to the mother or the father, no matter what the age or sex of
your children. Courts cannot deny your right to custody or
visitation just because you were never
married to the other parent, or because you or the other parent has a ph
ysical disability, or a different
lifestyle, religious belief or sexual orientation.

In a few cases, if giving custody to either parent would harm the children, courts give custody to
someone other than the parents because it is in the best interest of the children. Usually, this is called
“guardianship,” where someone who is not the parent asks for custody of the children because the
parents cannot care for the children.  Click here for more information on guardianship.

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