father consoling young son during parent's breakup

If you are getting a divorce, and you have children, one of the most important issues will be child custody. You are likely wondering: How will child custody be decided?

Divorce law, in general, is state law. So, how the court decides child custody will depend on the state where your divorce is filed.

In this post, I will discuss how child custody is decided under the law of Oklahoma, where I am licensed to practice.

While many states have child custody laws similar to Oklahoma, your state laws may vary, and you should check with a divorce attorney licensed in your state to determine your state’s custody laws.

young son hugging father as the dad pulls wedding ring off his finger divorce concept

Two ways child custody can be resolved

In divorce cases, child custody can generally be resolved in one of two ways:

  1. Out-of-court settlement
  2. Decision by a judge

Out-of-court settlement

In most states, you may settle with your spouse out of court, and a judge will sign off on the order.

Generally, most of my clients have found out-of-court settlement preferable to having a judge decide custody. In almost all of my cases where a judge has made a custody ruling, both parents are unhappy with the ruling.

The judge will never have met you or your children; do you want the judge planning your children’s lives?

One way to settle out of court is through mediation. In mediation, you and your spouse (and your attorneys, if you have them) will meet with a third-party neutral called a mediator.

The mediator is not like a judge, in that he cannot order you to do anything. But the mediator can guide you toward a settlement.

A good mediator can “talk sense” into a very difficult spouse. I have had many clients, who thought their cases could never be settled out of court, who achieved a settlement at mediation, and were pleasantly surprised.

Decision by a judge

If you cannot reach a settlement out of court, a judge will decide your case. The judge’s decision will depend on the laws of your state.

While state laws differ, the following legal principles frequently apply in many states:

  1. In general, many courts and state laws no longer favor the mother in divorce cases. For many years, states followed the “tender years doctrine” which favored placing young children with the mother. This has largely changed, and whether you get custody won’t depend on your gender.
  2. The court may deny you custody if you have certain criminal convictions. For example, if you have convictions for child abuse, domestic violence, or a sex crime, a court may deny you custody on those grounds. The court may also deny you custody if you are living with a person who has certain criminal convictions.
  3. The court may appoint a psychologist, guardian ad litem, or parenting coordinator to interview you, your ex-spouse, and possibly your children. The court-appointed professional may then make a recommendation to the court.
  4. The court may award “joint custody” in which both parents have equal decision-making authority.
  5. Many courts prefer giving each parent as much time with the children as possible.
  6. A court may order drug testing on you or your spouse. If you are alcohol or drug dependent, a court may deny you custody.
  7. If the child is old enough, the court may take the child’s preference into account. In Oklahoma, if the child “is of a sufficient age to form an intelligent preference” the court must consider the child’s preference; however, the court is not required to follow the child’s preference.

    The law doesn’t provide any set age when a child “is of a sufficient age to form an intelligent preference.” However, there is a “rebuttable presumption” that a child over the age of twelve is of a sufficient age to form an intelligent preference.
  8. Sometimes a court will grant custody to the parent who appears to be more cooperative. The court wants to ensure continuing contact with both parents, and if a parent is uncooperative, or appears likely to secrete the child away from the other parent, the court will not give custody to an uncooperative parent.
  9. A court may not deny a parent custody because of the race or ethnicity of a stepparent. In Palmore v. Sidoti, the U.S. Supreme Court ruled that it is unconstitutional race discrimination to deny custody to a parent because the parent is married to someone of another race.

    Because this is a U.S. Supreme Court ruling, all states must follow it. This is one area of the few areas of child custody law which is federal, and applies in every state. 


In addition to being confusing and complicated, child custody law is one of the most emotionally difficult areas of law in which you may find yourself.

This article has only scratched the surface of child custody law. If you are in the midst of a divorce and custody case, you should definitely seek qualified legal counsel.

Author’s Bio

Kyle Persaud

Attorney Kyle Persaud is the founder of Persaud Law Office based where he has years of experience assisting local women and moms handle cases in divorce and separation.

Mr. Persaud holds a B.A. from Oklahoma Wesleyan University, and a J.D. from the University of Tulsa College of Law.