One of the most difficult and painful parts of a divorce concerns the children of that marriage. Many times the parents will agreeably work out the problems of custody themselves and avoid a court battle. If the parents agree on custody, the court shall award custody in accordance with the agreement, as long as the agreement is in the child’s best interest. However sometimes each parent will want custody of a child and the case must be decided in court.
Neither parent is entitled to custody of minor children, that is, children under 18, as a matter of legal right. In awarding custody of a child, the court is guided, by what appears to be the child’s best interest. “What’s best for the child” is the key question in the court’s decision, not the wishes of the parents. Joint custody is no longer presumed to be in the child’s best interest because the parents are free to agree on custody. If they don’t the court must award joint custody. Though not mandated by law, the court generally will fashion a custody arrangement that will allow physical custody to be “shared equally” to the extent possible, provided that equal sharing is in the child’s best interest. If custody to one parent is shown by very strong evidence to be in the child’s best interest, the court will award custody to that parent. If both parents are unfit the court may award custody to a third party.
If the child resides primarily with one parent (who is called the domicillary custodian), the other parent will receive reasonable visitation rights, unless the court finds that this is not in the child’s best interest. A relative by blood or marriage or a former stepparent or step-grandparent may also be granted reasonable visitation if in the child’s best interest.
The court may question a child who has reached an age sufficient to make an intelligent choice about which parent he or she prefers to stay with. The judge carefully considers the child’s preference but it is not binding on the court.
The court also considers the morals of each parent in order to make certain the child will have a stable family environment. The court is interested in the ability of each parent to provide financially for the shelter, food, clothing, and education of the child and may order an evaluation of the child and/or the parties to help the court determine these issues. Often the non-custodial parent, that is, the parent who does not live with the child, will be required to pay money to support or help support the child, so finances are not the final determining factor, but they are taken into consideration. Any later marriage of either parent may also have some bearing on the court’s decision to award custody.
The child’s age is considered, also. Formerly, younger children were thought to be better off in the care of a mother rather that a father, but the law in cases such as these has changed recently. Many fathers are anxious to participate more actively in bringing up small children. Many mothers are interested in establishing careers for themselves and do not want to leave children at home with sitters or at day-care centers. Or they simply feel that the responsibility of bringing up children does not rest entirely with the mother. The courts have begun to take a broader view in such cases.
The devotion of the parent to the best interests of the child is one of the most important factors. Parents, who are angry with each other, should not use children because their marriage has not gone the way they expected. The parent who puts the best interests of his or her child before personal desires is the parent who is truly working to do the child the most good. When parents do not voluntarily do this, the court may order the parties to mediate their differences in a custody or visitation proceeding. Divorce is, at best, a difficult experience. But when children are involved, the issues become more complicated. Few people would argue that the children should be spared as much of the difficulty as possible. For this reason, it is wise to try to decide custody issues as objectively and unemotionally as possible.
Family counseling services can be helpful as such a time. The court can change custody, according to the best interests of the children at any time until they reach the age of 18.
If an agreement about custody can’t be worked out in a friendly way and a custody hearing must follow, consult your attorney and keep yourself as open to your child’s interests as you can. Remember that you can demonstrate your love for your child by doing what is best for him or her even if it is a painful decision for you.