July 17, 2020
In many contested divorces the contest involves issues of custody of children. Frequently these battles involve two parents who are both capable and competent care givers. Typically both parents love their children. Unfortunately, parents who are getting divorced have to learn how to share their children. In most cases, if the parents were good at sharing and cooperating together they probably would not be getting divorced.
Each person has their own reason for fighting for custody. For some people it is ego. For some, it is a desire to hurt their spouse. For others it is money. Some people have a genuine belief that the children are better with them than with the spouse.
Some people fight over custody because child support is tied to the issue of custody. If a parent doesn’t want to pay child support then he or she needs to obtain primary custody of the child. If primary custody is not available then shared custody with each parent having parenting time for one half of the time available is a goal. Even 50 / 50 custody can result in lower child support payments. Of course, the parent with the lower income may fight for custody only to get child support payments or higher child support payments.
Courts approach custody from the point of view of what is best for the child. The name for this concept is “the best interests of the child standard.” This simple statement gives a judge broad discretion in making a custody judgment. This standard can be difficult to translate into presenting evidence so attorney Alan J. Pransky would tell you to consider the following:
1.) What was the custody arrangement when the couple was together? Custody trials tend to have a lot of contradictory evidence. Each spouse tends to exaggerate the other spouses flaws and minimize their own. Start with the question of who was the primary custodial parent when the couple were together. Most couples have an allocation of responsibilities within the marriage. One spouse tends to be the primary wage earner and the other tends to be the primary housekeeper and child custodian. When the wage earner testifies how dangerous the other spouse is and how that spouse poses a threat to the child, ask “How did you go to work each day leaving the children in the care of this person you claim is a threat?” When day after day a parent is left alone with the children it is hard to believe that they are a danger to the children.
2) Which parent has the strongest bonds with the child? While children may love both of their parents, they usually choose one parent over another for comfort and security. When a child is injured, which parent do they seek for comfort and protection? As children get older, which parent do they feel more comfortable talking to? Children may indicate that they can’t imagine living separate from one parent but can easily imagine living separate from the other.
3) Each parent’s plan for taking care of the children. In order to argue for custody, a parent must provide care for a child 24 hours a day, every day that the child is with the parent. This means that the parent must have an appropriate physical setting. Do both parents have separate bedrooms or is a parent proposing to share a bed with the child? Where will the child be going to school? How will the child get to school? If a parent proposes 50 / 50 custody but lives an hour away from the other parent then the child will be subjected to unreasonable commuting to get to and from school. How will the parent provide care to the child when working? How will a parent care for a sick child that can’t go to school? Will the child live in the same home as prior to the divorce and be able to continue to play with the same friends? Judges may call this evidence “stability and continuity in the child’s life” but once can tend to think of it as having a better parenting plan.
4) For many judges, the ultimate measure of the best interests of the child is the success the child achieves in school. This means that each parenting plan should be considered in terms of how it encourages success in school. A judge should consider how each parent deals with the child’s homework and school preparation. Are the parents consistent on bedtimes on school nights? How have the parents interacted with teachers in the past?
5) A court will also consider living arrangements and lifestyles of each parent andhow such circumstances may affect the child. The mere fact that a parent intends to live with a new romantic partner should not determine child custody. While some states consider such a living arrangement to be morally harmful to the child, most states don’t consider such moral evidence. Instead, courts should consider how the new love interest treats the children. Any live in partners will have to be involved in care giving for the children. A Court should view cohabitation from the viewpoint of benefits and disadvantages to the way the children are treated.
6) Increasingly courts are considering the manner in which each parent interacts with the children about the other parent. Parents should protect the child’s relationship with both parents. No derogatory comments about the other parent. No excessive questioning the child about activities with the other parent. No blaming the spouse for the termination of the marriage. Potential or actual parental alienation should be considered by a judge in a custody decision. Most experts advocate that children need quality time with both parents. There is a current trend to give both parents significant time with the child.
Contested child custody cases can be very difficult. If you can’t agree with your spouse about custody of your children you should consult a child custody lawyer for advice and assistance.