Custody

Child custody determinations are based on what is in "the best interest of the child." The general basis is it is in the best interest of the children to have a relationship with both parents. The court will look at the history of custody, work schedules, availability, etc. in making determinations. Older children's wishes may influence custody but is not dispositive. The judge has broad discretion. If you negotiate with the other party and come to an agreement, the court will adopt the agreement.

If your question deals with a guardianship, that's whole different discussion.

It is difficult to tell if you are asking a procedural question, or asking what facts make a difference in the outcome. The procedures vary, depending upon whether there is already a custody order from a divorce or parentage proceeding. I would not base a decision to seek custody upon a child's stated preference -- while courts must consider such preferences they rarely make a decision based upon what the child says he or she wants at any given moment. Children feel caught in the middle, and may be telling each parent what that parent wants to hear, or what the child feels at the moment. Generally, the Court is not going to look positively at a parent who is questioning children about custodial preferences. Before considering litigation, you may want to invite your children's mother to participate in court-connected or private child custody mediation, and work towards developing a new parenting plan by agreement. Plans that the parents create themselves have a higher success rate. Child custody litigation has very high emotional and economic costs -- so trying a non-adversarial approach is wise. In preparation for child custody mediation, you might want to read some books on coparenting, such as Isolina Ricci's "Mom's House, Dad's House" and Jeffrey Wittman's "Custody Chaos, Personal Peace." You might also take a look at the links at www.afccnet.org to various guidelines for age-appropriate parenting plans.

You should discuss your situation in detail with a family law attorney. The query you posted is too vague to give a helpful response. For example, it is unclear whether there is already a court order regarding custody or not. The number of children and their ages would also be a factor. If you can be more specific, perhaps this forum can be of more help to you.