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Family Law - Deciding Who Gets Custody. Unless the parents agree on the custody of their child, a court will decide who gets custody based on the child's "best interest." Factors a judge may consider include the amount of care that the parent gave to the child before the divorce, a parent's history of abuse, a parent's current sexual relationships, and sometimes who the child prefers to live with. In almost all states, a court should not assume that custody should be given to a mother. Mothers and fathers have equal rights to custody. A custody decision can be changed to meet the needs of the child. Parents who want to change the custody arrangement generally must show a substantial change in circumstances. Because the needs of children change, as they grow older, as do parental situations, custody should be reviewed from time to time to consider what is truly best for the child.
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