Divorce. Children. These two words seem joined more often these days.
The result is one of the most emotional and traumatic issues in family law: child custody.
It is also one of the most misunderstood. The term “child custody” is actually an amalgam of two related but entirely different concepts: “legal decision-making authority” and “parenting time.”
“Legal decision-making authority” (aka “legal custody”) is basically the family court’s designation of which parent speaks for the children on such matters as health care (e.g., selection of a pediatrician, elective procedures); education (e.g., school choice); extracurricular activities; obtaining a driver’s license; etc. Legal decision-making authority can be either shared (joint custody), where both parents have equal say and both must agree to a particular decision regarding the children (co-parenting) or sole, where one parent is granted the exclusive authority to make such decisions.
“Parenting time” (formerly called visitation) is the scheduled time allotted to each parent to have physical custody of the children. Parenting time can run the gamut from an equal parenting time plan where each parent has the children exactly 50 percent of the time to restricted or supervised parenting time when there is a serious concern for the children’s well-being for some reason while with one parent (e.g., domestic violence or abuse, anger-management problems, suicidal tendencies, substance abuse, serious mental health issues, etc.).
It is important that parents understand the following important considerations and precepts that generally govern child custody disputes.
- The overriding concern of the family court is the “best interest” of the children.
- It is in the children’s best interest to have two equally involved and active parents in their lives.
- Continual conflict between parents is emotionally harmful to children.
- The family court will be gender neutral in addressing custody disputes and will not favor mothers over fathers (with the possible exception of infants).
- The present and prospective parent child relationship is more of a concern than what has occurred in the past. The family court often takes a therapeutic approach to resolving custody disputes with an eye toward “fixing” identified problems in the parent child relationship. (Consequently, the familiar complaint that the other parent has never been involved in the children’s lives is not a good argument for continuing that dysfunctional pattern by limiting the parent’s future involvement in the children’s lives. Propagating a situation that the complaining parent inherently admits is not in the children’s best interest is certainly not going to fare well with the court.)
- A person can be a bad spouse but still be a good parent. The relationship between parent and child is a completely separate relationship from that between husband and wife and is governed by different dynamics. The fact that parents no longer love one another does not mean that the children do not continue to love each parent. Parents need to realize that their children’s feelings for the other party are legitimately different from their own feelings for the other parent.
- No one ever “wins” a custody dispute; the other side “loses” it. Trying to “win” a custody dispute by attacking the other parent or making them look bad will likely backfire. The family court will proceed on the assumption that the children’s best interest is to have two active parents involved in their lives. A parent who is perceived as trying to remove or limit the other parent from the children’s lives will be viewed as acting against the children’s best interests. The parent who is supportive of the other parent’s involvement with the children will be viewed positively by the court.
- Parents need to love their children more than they dislike/hate their spouse. Again, the key to a custody dispute (and healthy children) is parents who put aside their own feelings and do what is in their children’s best interest.
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Mr. Richard is a partner with the law firm of Dickinson Wright PLLC. His practice for the past 30 years has focused on family law and divorce cases. He has been a certified specialist in family law for the past 15 years and is a fellow with the American Academy of Matrimonial Lawyers. He has been listed in Best Lawyers® for a number of years.
