Learn when child custody becomes part of a divorce, why minor children matter, and how agreements, temporary orders, and separate cases fit in.
Best for the Children Editorial·7 min read·October 23, 2025·Updated October 20, 2026
You're filling out the divorce petition and reach the question about children of the marriage. What you check there decides much of how the case will go. If you and your spouse have no minor children together, custody never comes up. If you do, custody is almost always part of the divorce. The court has to settle custody before it finalizes the divorce, even if you and your spouse already agree on everything. The exceptions are narrow: another court already has the custody case, or the court ends the marriage first and decides custody later. Married parents who live apart without divorcing can also seek custody in a separate case.
Custody, visitation, and child support only enter a divorce when the spouses have minor children, either born to them or adopted. If you have no children, or your children are already adults, custody is not an issue in your divorce.
States build this rule into their procedures in different ways:
Many families face these rules. CDC provisional data for 2023 shows 2.4 divorces per 1,000 people in reporting states and the District of Columbia, compared with 6.1 marriages. U.S. Census Bureau research found that nearly one-third of Americans born between 1988 and 1993 saw their parents divorce before they reached adulthood.
Custody is really two separate decisions:
Each type can be sole or joint. That is why one parent can have primary physical custody while both parents share joint legal custody. A divorce with minor children has to address both questions, whether the parents fight over them or not.
Many parents assume that if they work out custody between themselves, the court won't be involved. That's not how it works. An agreement you reach outside court is only an agreement until a judge signs it. Your parenting plan or stipulation is submitted to the court, and once approved, it becomes an enforceable order that is part of the divorce judgment. Court rules in California and New York both describe this step.
Courts also push parents to reach agreements, and some make that step mandatory:
If mediation and negotiation fail, the judge decides custody based on the child's best interests. Either way, a court order is the end result.
Divorces can take months, and children still need a schedule in the meantime. Either spouse can ask the court for temporary orders, sometimes called pendente lite orders. These cover custody, visitation, and child or spousal support until the final judgment.
In California, a parent asks for temporary custody and support by filing a Request for Order (Form FL-300). If a child faces immediate danger of harm or abduction, the parent can request emergency (ex parte) temporary orders. Illinois law likewise lets courts allocate parental responsibilities and parenting time temporarily, before the final divorce decree.
Custody can be handled outside a divorce case, but usually for reasons other than parents agreeing.
You're separated but not divorcing. Married parents who live apart don't have to file for divorce to get a custody order. In New York, for example, they can petition the Family Court for custody and visitation, and there are no court filing fees.
You were never married. Unmarried parents have no divorce to attach custody to. In California, they first have to legally establish parentage through a parentage or paternity action. Only then can a court issue binding custody, visitation, or support orders.
Another court already has the case. If an earlier case already placed your child under another court's continuing jurisdiction, the divorce may not reopen custody. The Texas rule above shows this. When parents live in different states, the Uniform Child Custody Jurisdiction and Enforcement Act decides which state's courts can hear custody, with priority usually going to the child's home state. It also makes custody orders enforceable across state lines. The act has been adopted in 49 states and the District of Columbia.
The marriage ends first. In California, a court can "bifurcate" the case using Forms FL-315 and FL-347. This ends the marriage so both spouses are legally single, while unresolved issues such as custody or property are decided later in a separate proceeding. Custody still has to be decided. It just happens after the marriage itself is over.
Proving that your spouse did something wrong is not what gets you a divorce or decides custody. No-fault divorce is available in all 50 states, so either spouse can end a marriage without proving adultery, cruelty, or other fault grounds. For divorcing parents, the custody question is what the court focuses on: what arrangement best serves your children.
Whether custody is part of your divorce depends on whether you have minor children, not on whether you and your spouse get along. With no minor children, custody doesn't come up. With minor children, the divorce will produce a court-approved custody arrangement in nearly every case, whether you reach it through agreement, mediation, or trial. The exceptions are a different court already holding the case, a bifurcated case, or a custody case filed on its own because you are separated or never married.
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