CHILD CUSTODY
Divorce in itself is trying enough. If children
are involved it becomes even more trying and extremely emotional.
Parents often loose sight of what is in the best interest of their
children. Where do the children fit into this whole new life that
is being created. Unfortunately children often become financial
pawns in a divorce when child custody issues are being decided.
Before the divorce is finalized a temporary child
custody arrangement is put into place. This can usually be done
without the courts intervention if both parties can reach an agreement.
The temporary custody arrangements are not necessarily what the
final custody arrangement will be. The agreement should be well
thought out and comprehensive. It is best to put it on the court
record to make it binding.
TYPES OF CHILD CUSTODY
The most common form of custody is Joint
Legal Custody. This is where the children live with one
parent (residential custodian) while the other parent has visitation
rights. With Joint Legal Custody, both parents make the decisions
on behalf of the children concerning health, education, religion
and general welfare.
Joint physical custody Often referred
to as shared parenting, it is when the child resides with both
parents for a significant amount of time. This arrangement does
not always work out to be an exact 50/50 split. In order for this
type of situation to work, there must be cooperation on both sides.
The parents would also have to live in close proximity as not
to affect the child's schooling. A few years ago there was a trend
towards awarding this type of custody, however recently it has
been determined that this may not be in the best interest of the
child.
Sole legal custody Is when one
parent has the right to make all the legal decisions regarding
issues such as health, education, general welfare and religion.
This type of custody is not very common anymore.
When the divorce is finalized both physical (residential)
and legal custody will be determined.
THE CUSTODY AGREEMENT
The purpose of the custody agreement is to reach
an understanding on how to raise and care for the child with both
parents sharing in the responsibilities and maintaining involvement
in the day to day life of the child. For the custody agreement
to work it is essential that you be flexible. Make every attempt
to encourage and respect the relationship of your child and the
other parent. Don't assume anything and keep an open mind. Easier
said than done when in the midst of the turmoil that naturally
goes with a divorce. Keep in mind you and your spouse are getting
the divorce, you are not divorcing your children. What if you
can't come to an agreement on custody? Then be prepared for a
custody battle.
THE CUSTODY BATTLE
Unfortunately, a battle is exactly what it will
turn into. Before you reach the point of court intervention to
decide custody think long and hard. A custody battle puts the
child right smack in the middle of your battle. Why are you fighting
for custody? Are you fighting FOR custody or fighting so that
your ex-spouse DOESN'T HAVE custody? Is it in the best interest
of the child? If you've determined that it's the right thing to
do for the children to go forward, what can you expect when the
court intervenes?
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The court will take into consideration the best
interest of the child when making the decision.
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If the court feels that neither parent is acting
in the best interest of the child a guardian ad litem may be
appointed to help in making decisions on the behalf of the child.
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Depending on the age of the child, their wishes
may or may not be taken into consideration. Some states strongly
take into consideration the wishes of the child depending on
their age, some states do not consider the child's wishes at
all, without regard to age.
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Traditionally, the judicial system leans towards
deciding in favor of the mother in custody cases. However, with
more women pursuing full time careers this trend may be changing.
It is no longer assumed that the mother is the primary caregiver.
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Unless the situation is so obvious that one
parent should have custodial rights over the other (such as
in drug abuse or physical abuse) a court ordered independent
evaluation will probably be ordered. The evaluation is usually
done by a court appointed mental health professional such as
a psychologist or a social worker. A thorough evaluation can
include the following: interviews with all the parties involved
(individually and possibly with the parent and child together);
psychological testing of both parents and the child; review
of school records and or conversations with teachers; review
of medical records and developmental history; review of legal
records, such as the papers filed regarding the divorce, any
possible domestic disputes and any criminal records of either
party involved. Be prepared for the evaluation to take at least
four to six weeks if not longer. Be prepared for a time consuming
and costly battle.
No matter how strongly you believe you would be the better parent
and should have custody of the children, be prepared for the court
to decide against you. Be ready to accept the courts decision
and move forward to work with your ex-spouse to raise your children
in a way that is best for them.
NEVER use a custody battle as a chip in negotiating
a better financial settlement. Once the battle has begun, everyone
will be scarred including the children. So think long and hard
about the consequences of your actions and always keep the children's
best interest in mind, long and short term.
