This article is provided by Lauren Bennett and the Law Firm of Stephen Vertucci.
The dead-beat dad – we all know the stereotype – files for divorce, possibly because of infidelity on his part, then skips out on child support payments and weekly visitations with his children and eventually ceases any possible relationship with them. Why is this the such a stereotypical situation, when it’s been proven that most fathers are loving, caring parents that want nothing more than to spend time with their children and see them thrive? A mixture of Hollywood and history have added to this stigma, but times are changing and a “men’s rights” movement is in full force – which plays in favor of loving fathers.
Since most fathers are genuinely interested in their children’s lives, going into court ready to prove your dedication to a potentially biased judge is essential. Knowing the facts about often misinterpreted child custody facts can better prepare you for an emotionally stressful trial, and result in a plan that is best for the entire family.
- The mother doesn’t always get sole-custody of the child(ren)
The common myth that the mother always gets full custody of the children is constantly disproved by courts and experts throughout the country. This idea came from the fact that long ago, mothers were typically the primary caretakers in the family, thus leading to a stronger relationship with the children and increased chances of being awarded custody if a divorce occurs.
In the modern age, many women work equally to the amount of the father and two-income households have become the norm – this evens the playing field for mothers and fathers in terms of how much time each parent gets to spend with the children. The Family Court is not permitted to use gender bias when determining custody of a child.
- Child custody arrangements can be modified
The courts understand that life changes and that a child custody arrangement may need modification to keep up with it. At the forefront of the child custody process is the child’s best interest – the court will always attempt to do what is best for the child.
When one or both parents request a child custody modification, the court does not take the process lightly. This process is notoriously emotional and stressful, which is why its suggested that a modification only be requested when it is clearly a better option than what was originally agreed upon.
Once a parent requests a modification, the court will consider changes in the child’s schedule, geographic location changes of the parents or child, and environmental changes in the home the child is currently residing in that cause danger to the child’s physical, mental, or emotional health.
- Child custody cases are often settled before reaching court
Although many people think that child custody cases are resolved in court by a judge, only about 4% of cases see the inside of a courtroom. Child custody cases are almost always solved outside of court by the parents or through a process known as mediation.
The mediation process allows both parties to work together and come to an amicable agreement – and skip the hefty fees of dragging a case to court. According to Stephen Vertucci, a Colorado attorney who has experience mediating child custody cases, “If you and your spouse can agree, the court will usually go along with your decision. It is nearly always preferable for the parents to work these things out on their own.” Other than the financial aspect, mediation has huge benefits, including:
- The ability to work together with your ex-spouse and come to an agreement that is best for your children
- Coming to an agreement much quicker than in court – typically within a week or two
- A neutral party conducting the mediation that is not personally invested in either side of the custody battle
- The ability to speak freely throughout the process without having your words used as evidence in court
While it seems that mediation must be done face-to-face with your ex-spouse, it’s possible for it to be done separately. This works well if you and your ex don’t have the best relationship and prefer to not be in the same room. The mediator will go back and forth between the two of you until an agreement is reached; allowing you and your spouse to work amicably together while maintaining your space.
- The parent who files for divorce doesn’t automatically forfeit custody
A common misconception about the child custody process is that the parent bringing the case is automatically forfeiting their chances of getting custody. While this seems “logical” – it’s entirely false. The family court likes to see parents putting the needs of their children before their own desires. When a parent comes forward and decides that ending the marriage is what is best for the family – the court sees that as a strength. Don’t automatically assume you don’t have chance for child custody, even if you were the one who filed the divorce papers.
- The Family Court takes several factors into account when determining custody
As mentioned before, family courts are forbidden from taking parent gender into consideration when determining custody. However, this does not prevent a judge from using his or her personal discretion in a custody ruling – meaning they can award custody to the mother if they believe a “traditional” situation is the best option. What is uniform across all states is the “best interest of the child” standard which may ambiguous at times, leading the judge to use his or her personal discretion.
Some aspects you can expect a judge to consider when determining the “best interest of the child” are the following:
- Age of the children – Some judges believe that younger children (typically under the age of 5) need to be placed with the mother, as these are considered the “tender years” of development. In the past, the “tender years” doctrine ensured the mother would get custody of children 5-years-old and younger but has since been phased out of the legal system. Some judges still believe younger children should be placed with their mothers, especially nursing infants.
- The parent/child relationship – You can certainly expect the judge to consider the relationships between the children and each parent. If the mother stayed home with the children and spent most of the time caring for them, there’s a bigger likelihood she will have a stronger bond with them. But this doesn’t always mean it’s the end of the road for fathers – judges will consider the time spent with the children, along with personal accounts from each parent and usually the children.
- Living situation of each parent – This one is huge – most judges will consider a parent that has their own established home over one that is in a temporary living situation. If you’ve moved into a hotel or are staying with a friend while you go through your child custody battle or divorce while your spouse stays in the family home, you can expect the judge to side with the opposing side. Make sure your living situation is as stable as possible before entering a child custody battle if you want to have a better shot at getting custody of your children.
There’s no doubt that divorce and child custody are stressful and intimidating processes. But, if you go in ready, you are more likely to have an ideal outcome for you and your loved ones – especially your children. It’s important that you explore all your options and strongly consider the best scenario for all parties involved in order to have a quick and manageable process, and get back to normalcy as soon as possible.