Back to Blog


A Guide to Custody Presumption and What It Means for You


You've decided to divorce. While there's some anxiety about what the future holds, it also feels like a huge weight has been lifted off your shoulders and you're ready to start stretching your new freedom wings. If you have children with your ex, however,  you're going to need to put some serious thought into what you want custody to look like before you start planning your divorce-finalization party.

The good news is that settling who's going to make what decisions about the kids doesn't have to be anywhere near as dramatic as the latest tabloid magazine covering the next big celeb divorce would have you believe. It is possible to get an amicable divorce and have a civil — and maybe even friendly — co-parenting relationship with your ex.

Family law attorney Laura Wasser has made this even easier by creating It's Over Easy — a site focused on helping people get through the divorce process as pain-free as possible. Here, you can find all the information you need about how to file for divorce online, how child support will be calculated, and what to include in the custody agreement. But first, you need to know a little bit more about the different types of custody arrangements and what is likely to be expected in your state.

If there is some question about which state the divorce will be filed in — this happens sometimes if you're occupying separate residences on a border town, where you technically live in one state and your ex in another or if you spend at least half the year in another state — make sure to check out the guidelines and expectations for both.

The Four Custody Presumption Possibilities

While the laws regarding child custody vary dramatically by state, they can be sorted into four main categories:

·       The presumption of joint custody

·       Joint custody favored

·       The presumption of primary custody

·       No presumptions or favors.

If you're trying for an easy, low-drama online divorce, knowing the laws in your state is the first step toward creating a proposed custody arrangement that the judge is likely to accept.

Assuming you're able to come to an agreement with your ex, being familiar with your state's laws makes it easier to know what needs to be included in your proposed custody arrangement if you're hoping to file for divorce online, and it also helps you better understand how to customize one of It's Over Easy's custody templates. For example, let's say you live in Montana, a no-presumption state. You've agreed that you'll have primary custody of the children and your ex will have generous visitation rights.. So all you have to do is submit your custody agreement, right? Wrong. Montana is one of the several states that requires parents to submit co-parenting plans. This basically tells the courts how you plan to make things work so that both of you stay active and involved in the children's lives. Knowing this little bit of information ensures you submit the proper documents with your divorce, so everything can be processed faster and without issue.

Keep in mind that all states prioritize the best interests of the children over everything else, so don't get too worried if you live in a state where there is a presumption of primary custody or no preference. A presumption is simply that: a first and most-often used viewpoint. You can still present the courts with a custody agreement you've worked out with your soon-to-be ex or bring in evidence of why you think an arrangement outside of the presumption would be best for your children.

Presumption of Joint Custody

If you live in one of the following states, the family courts have decided that it is in the best interests of the children for both parents to have shared responsibility of legal decisions. This also usually translates to at least somewhat equal physical custody, although this can vary depending on the ages and needs of the children as well as other factors such as how far apart the parents live.

States with a presumption of joint custody:

·       Florida - Joint custody must be ordered unless there is evidence that it is specifically detrimental to the child.

·       Idaho - Joint custody is presumed in the best interests of the children "absent a preponderance of the evidence to the contrary."

·       Iowa - The courts must give a specific reason if joint custody is not awarded.

·       Kansas

·       Louisiana - Joint custody is presumed best unless the parents agree otherwise. However, joint custody can still be awarded if the parents don't agree unless there is "clear and convincing" evidence otherwise.

·       Massachusetts

·       New Hampshire - Presumption of joint custody except in cases of domestic violence.

·       New Mexico

·       Wisconsin

If your state is listed above but you want a sole custody arrangement, you'll need to be prepared to prove to the courts that such a setup is in the best interests of the child. This is true even if your ex agrees. Make sure to have any supporting documentation and evidence that you think might be relevant handy, and remember that your argument will need to focus on the child. The fact that both parents think it will be "easier" if only one of you has custody isn't likely going to be enough in one of these states.

Joint Custody Favored

Many states don't have a specific note that joint custody is presumed best for the children in the Family Law Code but operate under the assumption that as long as the parents agree to joint custody, that's what should be ordered. This is important for those doing an online divorce because it means as long as you live in one of the following states and agree to share parental responsibilities, the courts will ratify that agreement. No one has to prove why joint custody is in the best interests of the children, and the process of getting a formal order is often much quicker. You can use one of our custody templates to make things even easier and ensure that you've addressed everything important now and that may come up in the future.

States that award joint custody if the parents are in agreement:

·       Alabama

·       California

·       Colorado

·       Connecticut

·       Georgia

·       Indiana - Sole custody may be awarded if the mental or physical health of the parent is in question or if there is a history of domestic violence.

·       Kentucky

·       Maine

·       Michigan

·       Minnesota - Except in cases of domestic violence

·       Mississippi

·       Missouri

·       Nebraska

·       Ohio

·       Oregon - Joint custody cannot be awarded if one parent objects.

·       South Carolina

·       South Dakota

·       Tennessee - Orders other than joint custody require “clear and convincing evidence" that joint custody was not in the best interests of the children.

·       Washington

The main concern here is to make sure that your custody agreement is as thorough as possible. It's Over Easy co-parenting calendar and resources can help with this, but you will also want to chat with your ex and brainstorm whether your family has any special circumstances — now or that are likely to come up in the future — that may require a specific note in the agreement. Examples could include anything from one parent having to travel for weeks at a time for work to how you'll deal with things if/when either one of your remarries.

Presumption of Primary Custody

As you can see so far, most states operate under the assumption that joint custody is usually in the best interests of the children, barring extreme circumstances such as abuse, neglect or substance issues, or that there is no presumption of custody (more on that in just a bit). However, as of 2017, there are three states that still have code on the books that specifically state that primary custody is the default arrangement unless there is compelling evidence to the contrary. These are:

·       Utah - Presumption of sole custody in cases of spousal abandonment.

·       Vermont - If the parents cannot agree on a plan, custody will be awarded to one parent.

·       West Virginia - It is presumed that custody should be awarded to the primary caretaker.

If you live in one of these states and both you and your ex can agree on who is going to be the legal custodian, you shouldn't have any issues. However, if you want joint custody, you'll need to be prepared to make it very clear to the courts why you believe joint custody supports the best interest of your children. It might help to have a strong and very thorough parenting plan, as the courts may be more likely to make a deviation from the presumption of custody if they believe that the parents are truly prepared to communicate frequently and positively and have made provisions for possible issues that may occur later on, such as one parent wanting to relocate.

You may want to include your dispute resolution plan as well. For example, maybe you plan on presenting your opinions to each other in writing, allowing for two weeks of consideration and then if you still don't agree, you'll try mediation or arbitration. The more you can show the courts that you are committed to an amicable divorce and a positive joint custody arrangement, the better your chances are of having your proposed arrangement accepted.

No Presumption/Favor

In these states, any custody arrangement — from joint legal custody and 50/50 physical custody to sole custody with supervised visitation — is on the table, and each possibility is given equal weight:

·       Alaska

·       Arizona

·       Arkansas

·       Delaware

·       District of Columbia

·       Hawaii

·       Illinois

·       Maryland - Sole custody is presumed in cases of abuse or neglect.

·       Montana

·       Nevada

·       New Jersey

·       New York

·       North Carolina

·       North Dakota

·       Oklahoma

·       Pennsylvania

·       Rhode Island

·       Texas

·       Utah - Presumption of sole custody in cases of spousal abandonment.

·       Virginia - There is no official presumption on the books, but most judges lean toward joint custody.

·       Wyoming

If both of you agree on a custody arrangement, the family courts in these states are likely to go ahead with that decision absent extraneous circumstances. However, it's important to understand that judges in these states have the most leeway with making proposed custody arrangements becoming formal orders. This means that even if both of you believe that a sole custody arrangement is in the best interests of the children, the judge could disagree and order joint custody. The best way to ensure that your proposed custody agreement goes through is to make sure it is 1) focused on the best interests of the children and 2) meets any specific requirements present in your state.

Children's Wishes

Even the most amicable of divorce can be extremely difficult for children to process, and it's normal for them to act out, suddenly cling to or reject one parent or unfairly blame one party for the divorce. Even older children can have trouble being objective during a divorce or putting rational thought into who should be responsible for making decisions regarding them until they turn 18. In almost all states, except for Vermont, the children's wishes can be considered as a factor in determining custody, but in most, it's pretty low on the hierarchy. However, if you live in one of the following states, you may need to prepare for your child to get the final say:

·       California - Children age 14 or older have the right to testify to state their preferences.

·       Georgia - Children age 14 or older can choose which parent to live with.

·       Hawaii - Children of "sufficient age and capacity to reason" may state their preferences for the judge to consider.

·       Oklahoma - The courts will take the wishes of children age 12 or older into consideration.

·       West Virginia - Children age 14 or older can choose which parent to live with.

So what does this mean for you? It means that if you're hoping to go through an online divorce and your situation falls into one of the five above, you're going to need to get your child involved in the process. The teenage years can certainly be tough, but if you're committed to an amicable divorce, chances are your children will be more cooperative than combative. It might be helpful to call a family meeting and explain to your children the role the state laws give them. This helps them understand how important this decision is and opens the door to an honest conversation about what they want to do.

In California, Hawaii, and Oklahoma, the children's wishes are just one consideration — albeit a strong one. This means that you and your ex can still put forth your proposed custody plan to the courts, but you'll need to present a united front and clear, compelling evidence if what you want isn't what your child wants.

While it's understandably going to be hard to hear if you assumed you would share physical custody and you find out your child would rather live with your ex, try to stay neutral and get to the why behind that preference. You may be surprised at the level of logic and reasoning behind their wishes. However, if your child says "because mom doesn't have any rules" or gives a less-than-mature explanation, you'll be prepared to explain to the courts why you think they should overrule your child's preference. Remember, though, that this is not an option in Georgia or West Virginia. If you live in one of these two states and you don't agree with your child's decision, your best option will be to work with your ex as much as possible to present a united front and foster a positive relationship with both parties.

Being Prepared

So now you know what the custody expectations are for your state and you've got a thorough, child-focused custody agreement ready to be filed with your online divorce. That's it, right? For most people, yes. However, even when both parties start out with the best of intentions to get through an amicable divorce, it doesn't always work that way. Actually sitting down and dividing your assets and your time with your children on paper is a whole different thing than thinking or even talking about it. If you find that you start to butt heads with your ex or are having difficulty agreeing on some aspect of custody, you're not alone. At It's Over Easy, we have a directory of experts in everything from custody to accounting with whom you can engage to ensure you have access to the information you need to get through your divorce without a lawyer.

Consider reading, Types of Custody and What They Mean for You.

If things get too heated, both of you may just need to take a break, so everyone has time to calm down and remember that the focus is on the children. Consider using our in-platform communication features as you work through this process, as looking back on discussions might give you some needed perspective. In many cases, both parties can reach a compromise that works for everyone — including the family courts — with a little bit of empathy, active listening, and creative thinking. It’s Over Easy’s intuitive divorce tools, and educational tools can help you achieve that balance.

Go to this page about online divorce to learn more.