Child custody is one of the most complex, painful, and expensive forms of litigation. It is painful for the obvious reasons – it involves your children, who matter to you more than any other issue in your divorce, more than money, property, or who gets what. When custody is disputed, you and your spouse may have to file petitions with the court that detail one anothers parenting strengths and weaknesses. Your family’s “dirty laundry” can quickly become public record, if there are accusations of abuse, mental or physical health issues, and other allegations of wrongdoing. It is incredibly difficult for anyone to see his or her personal life set forth in paper and ink, filed in a public record, read by a judge, and discussed in open court. Even when you “win” a custody battle, the scars are deep.
There is also the issue of expense. Parents who do not agree on custody or visitation are ordered to attend mediation and bear the costs thereof. If mediation is unsuccessful, the court may appoint experts to investigate the allegations and what is in the best interests of your children. Those experts may be a guardian ad litem, a mental health specialist, or a court-appointed representative for your children.
If parents do not agree on custody or visitation, the judge will make those decisions for your family, based on evidence the judge hears. That evidence can come from the parents themselves, other family members, experts, and other people who have seen or heard things that the judge would find useful in his or her determination. The judge may even talk to the children. The judge uses this evidence to determine what is in the children’s “best interests.” That analysis is different in every case, because each family is unique, but always involves a judge’s consideration of certain factors.
Those factors are:
- The wishes of the child’s parent or parents as to his custody;
- The wishes of the child as to his custodian;
- The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
- The child’s adjustment to his home, school and community;
- The mental and physical health of all individuals involved; the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
- The willingness and ability of each parent to facilitate and
- Encourage a close and continuing relationship between the other parent and the child;
- Whether one of the parents is a sex offender; and
- The terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed.
Of course, the easiest way to resolve a custody dispute is for the parents to compromise and come to an agreement. Even an imperfect custody agreement is better than a judgment imposed on you by a judge. You know your family dynamics better than any judge, and with a little reflection and guidance, can find the best solution for your family.
Don’t wait to talk about custody concerns until they become a problem. Often custody is determined by how the parents arrange things at the very start of the divorce, as this becomes the “status quo.” It is vital that you speak with an attorney before you make any decisions about who lives where, or move away from your children. If it’s even remotely possible custody is going to be an issue in your case, you need to know what to do right away.
No two custody cases are the same. Call and tell us about your custody concerns, and let’s discuss what to do next.