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Custody Considerations

Fighting over custody can be one of the most stressful and taxing events for you and your children because it causes such incredible emotional intensity and angst. That stress is not only felt among the parents, but also in your children whose fate is being decided, which can leave them with long lasting emotional scars.

When parties are in court disputing issues, such as who gets the house, a portion of a retirement plan, or the family business, it can become obvious at some point that the cost of the fight is approaching and perhaps exceeding the value of the asset, and the parties will often take steps to reach agreement, or at least to control the costs of the fight. But this is often not the case in a fight over child custody and visitation, as one can never put a price on spending time with their child or having the power to make important decisions about the child's upbringing and welfare.

Because of this, it's not unusual to see parties spending many times their net worth in a fight over custody of their children. While the fight is under way, they simply lose touch with the cost.

The very term "custody" often encourages conflict between parents because they assume that somebody "wins" custody and somebody loses. Yet, it doesn't have to work that way. Children need a close, loving relationship with both parents. Thus, a good custody/visitation arrangement is a win for the children. When the children win, nobody losses.

The Basics

One of the first things to understand about custody is that it's not about what's fair to the parents. Instead, it's about what is in the "best interests" of the child.

A court is charged with the duty to protect the interests of children, not to be fair to either parent. Because of this, a parent who has done everything he or she is supposed to do, may still suffer an adverse ruling simply because the judge believes that his or her decision is in the child's "best interests."

When considering a child's best interests, the court prefers the status quo. In other words, before a judge will force any change in a child's life, the judge will need to be convinced that there's either something really bad about the present custody/visitation arrangement or that something would be dramatically better about the child's life after the proposed change in custody or visitation. If neither can be shown, then the judge is likely to leave the present situation unchanged.

Getting Help

It is always best for the parents together to try to work through their disagreements about custody or visitation, without having a court decide those issues for them. Thus, it is often helpful for both parents to have a calm, savvy advisor who can help them do that. When hiring a lawyer, you should consider whether he or she has good negotiation skills.

If negotiations break down to the point that your case must be go to court, then you should make sure that your lawyer is also not afraid to properly protect your interests there; i.e., has the fortitude and wherewithal to fight for your interests in court.

Costs

For reasons discussed above, it's easy to lose track of costs when dealing with custody and visitation issues. Therefore, it's important to keep the lines of communication open with your attorney about how much costs and expenses you've incurred on your legal bill.

You should seek out an arrangement in which your attorney summarizes for you at least each month (or more periodically when you request) how much of your original retainer/deposit remains unspent, what major expenses are on the horizon, and what your attorney estimates the future cost of your case could be.

Although no good attorney can to tell you exactly how much a custody fight may cost, as there are too many variables to do so, an informed estimate can be a good tool for both of you.

What's Next?

Parents are fond of telling each other and the world that the children are their most important focus and that they are putting up a fight only because they believe it is in their child's best interests. In reality, however, fighting over children is rarely in their best interests, especially a nasty court battle. In such circumstances, parents often loose sight of the long term effects on their kids, and instead, focus on themselves and their struggle.

When both parents are able to focus on the children, rather then themselves, they rarely engage in a prolonged or nasty fight over custody. If minor disagreements do arise, they find ways to resolve the problem without acrimony or court intervention. The best way to care for your children in the midst of a divorce, or at any other time, is to work amicably with your spouse to reach a custody and visitation arrangement that provides equal time, rather than to fight incessantly over them.

You and the other parent are going to be intimately involved in your children's lives, including negotiating your parenting arrangements, at least until your child is grown up and out of the house, or married, and perhaps even beyond that. Where the child will live, how often he or she will visit, who will make arrangements for transportation, who will pay for certain expenses; all of these questions are subjects for negotiations between parents. This means that you might as well get started now learning how to work things out together. If you don't, it's going to be a long hard road for both the parents, and especially for your child.

That said, sometimes one parent's stubbornness or other bad behavioral traits forces the other parent into a custody or visitation fight that they don't want. For example, one parent may use custody as a cynical bargaining chip, such as a father in a divorce who has no realistic chance of winning custody (and even no real interest in having the children live with him) threatening to sue for custody because he knows it may prompt the mother to negotiate away some of her financial rights. Or a mother may use a child custody battle (for instance, trying to prevent visitation) as a way to punish the father for some other grievance she has with him.

One of the most important assets you can carry into a negotiation over child custody and visitation is a mature disposition and cool head. Children need both their parents as good role models. They need parents who will cooperate, even if the parents don't like each other. They need parents who know how to put their differences aside in order to act in their child's best interests. The best way to help your child develop into a happy, competent adult is to be a good role model, such as one who can be reasonable, cooperative, and consider the needs of others. Most parents want to be a good role model to their children. Taking the time to realize the long term benefit to the child is a good start to doing the right things during the divorce.


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Joint or sole custody may be awarded based on the best interests of the child and other factors that include 1) the preference of the child, 2) the desire and ability of each parent to allow an open and loving relationship between the child and the other parent, 3) the child's health, safety and welfare, the nature and contact with both parents and 4) the history of alcohol and drug use. Marital misconduct may be considered.
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