Child Custody: Don’t Fight Over The Kids If You Can Possibly Avoid It

When divorcing parents fight over custody, the whole family suffers.  One parent ends up feeling like the judge found something wrong with him / her, and the other parent may feel like he / she won.  In most cases, however, it is a close call, and the judge would be equally willing to place the child with either parent..

When the judge makes a custody decision, he / she is basing it on what appears to be the “best interest of the child”.  Every state’s laws  list factors the judge should use in coming to his / her conclusions. However, those factors are open ended, and the results in a case can come down to an individual judge’s personal opinions.  The judge’s decision can end up being a guess.  It is hard for a judge to tell who is being more honest when two people are claiming to be angels, while saying that the other guy is an escaped resident of the bad place.

The kind of information which might help the judge make his or her decision is often hard to get, as most family events take place behind closed doors.  In too many instances angry spouses exaggerate or even lie about the other person’s character.  Smoking pot with a buddy one time can be presented to the judge as an ongoing  drug addiction.  The other parent’s tipsy birthday celebration may be presented to the judge as a full blown alcohol problem.   A well deserved swat on the butt can be treated as child abuse in court by an angry parent.

A bad attitude toward the other parent can result in a loss of custody.  Courts agree that children should be encouraged by each parent to have a healthy relationship with the other.  The judge can remove a child from a parent’s home if that is the only way to secure contact with the other parent.  The judge can even keep the original custodian from having contact with the child for the amount of time necessary for the child to adjust to the other parent’s home.

Even a loving parent can find him or herself facing a limitation on his / her visitation privileges.  In an Indiana case, the court ordered supervised visitation for a father who genuinely loved his daughter, and who had a loving relationship with her.  The problem was that he was Egyptian.  Even though he swore he had renounced his citizenship and become an American, his threats to return to his birth place with the child prompted the judge to give him supervised contact.  Egyptian laws favor men, and the court understood that if the father left with the child, the mother would be at a great disadvantage getting her back.

If the custodial parent wants to change residences, he or she must let the other parent know before calling the movers.  This is so the child cannot disappear without a trace, depriving him / her of contact with his / her other parent.  The non-custodial parent’s whereabouts are also important because of the need to collect child support.

Specific requirements are different from state to state.  If you want to move you should be prepared to let the other parent know your new address, your new telephone number, about your new job, and the reasons you want to go.  The other parent can object to your plans, and although the judge can’t stop you from going, the child may have to stay behind.  Leaving without giving this notice can, in itself, be grounds for a change of custody.

If the moving parent can show that he or she has valid reasons to move, he / she will probably be allowed to leave.  The custodial parents’ wish to move is not,  by itself, enough reason to give the child’s care to the other parent.  However, factors such as schooling and close relationships with other relatives and friends can convince the judge that the move is not in the child’s “best interest”.  In that case, the custodial parent can either stay in the state or surrender custody of the child.

Finally if both parents are unfit to care for the child, the court can place him or her with a third party.  This would be either a friend or relative, if possible.  However, it could be foster parents if there is no safe alternative for the child.

In most cases parents know where their children should live even though they are divorcing.  They are willing to give each other the benefit of the doubt in terms of parenting skills and abilities.  Neither wants the other to be removed from their children’s lives,  and are willing to take the extra time and effort needed to help the non-custodial parent maintain contact.

If the parties refuse to make the child custody decision themselves, the judge will have to do it for them.Even a wise judge cannot mae good parents out of people who let their own differences effect their relationship with their children.  Warring parents cannot help but damage their children.  This is not to say that a couple should never ask a court to decide custody.  Sometimes, there is no choice.  However, people who can not agree on this most important issue should get counseling before they go to court so that they can try to make a decision together that is really in their child’s best interest.

Lucille Uttermohlen has been a family law attorney for 27 years.  In addition to divorce, she specializes in paternity, adoption, guardianship, probate and criminal law.  For a free ebook about the divorce process, visit Lucille at:
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posted by Alison Moxley

This entry was posted in Alternatives to custody battles, Equal parenting time, Staying sane, The children. Bookmark the permalink.

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