Children and Divorce Facts and Tips
Children's Reaction to Divorce
A child's adjustment to divorce depends upon (1) the quality of their relationship with each parent before the divorce, (2) the intensity and duration of the parental conflict, and (3) the parents' ability to focus on the needs of the children in the divorce. Typically, children whose parents are going through a rough divorce engage in behaviors to help them feel secure. Divorcing parents must remember that although they are no longer spouses, they remain parents for life.
Divorcing parents naturally worry about the effect of the divorce on their children. Parents may be consumed with their own problems, but they continue to be the most important people in their children's lives. Divorce invariably frightens and confuses children who see it as a threat to their security. Some parents feel so hurt or overwhelmed that they may turn to the child for comfort or direction. Unless parents tell them what is happening, how they are involved and not involved and what will happen to them, children can misinterpret the divorce.
Innocent Victims of Divorce
One of the most common notions that torment the children of divorce is that they have caused the conflict between their mother and father. Many children assume the responsibility for bringing their parents back together, sometimes by sacrificing themselves. Vulnerability to both physical and mental illnesses can originate in the traumatic loss of one or both parents through divorce.
The Don'ts of Divorced Parenting
Good divorced parenting has a dimension that is negatively defined. Good divorced parents do not speak badly or make accusations about the other parent in front of a child. They do not force a child to choose sides, or use a child as a messenger or go-between, or pump a child for information about the other parent, or argue or discuss child support issues in front of a child. In short, they do not use a child as a pawn to hurt the other parent.
A Tough Climb Up a Steep Hill
For a family broken by divorce, parenting is a tough climb up a steep hill. Divorced parenting works best when both parents remember one axiom: a former spouse who hurts the child's other parent hurts the children. A child of divorce whose parents continue to battle lives in a no man's land where he or she is cut to pieces in a crossfire. Effective parenting is then impossible.
One Question in the Mind of a Child
When parents announce their plans to divorce, one of the most important questions in the mind of a child is "What's going to happen to me?" It is very important to address these concerns as soon as possible.
Tough Marching Orders
The grim reality of divorced parenting is that divorced parents must do everything married parents do, but they do it without the benefit of each other's presence and reinforcement. This tough set of marching orders ignores the fact that the divorced parents march across terrain now made rugged by diminished finances, unresolved anger and bitter remorse.
In some jurisdictions, parenting classes for the parents of minors are now required as a preliminary to divorce. The classes teach parents how to minimize the negative effects of divorce on their children and serve to restate parental responsibilities in the context of divorce. They are not an eleventh-hour attempt at marriage counseling.
Some states restrict the right of the custodial parent to move with the child. These states favor preserving continuity in the relationship between the child and noncustodial parent, and courts in these states are reluctant to allow the custodial parent to move over the objection of the noncustodial parent unless there is a very good reason.
Notice Required for Child Relocation
Normally, a custodial parent who wants to move with a child gives the court 60 days notice, and the court considers both the custodial parent's reason for the move and the noncustodial parent's reason for opposing it. They also consider the advantages to the child from the move, and the degree to which visitation can be restructured to preserve the relationship between the child and the noncustodial parent.
Who Gets Custody
While judges are more willing to consider fathers as primary physical custodial parent, joint legal custody and sole physical custody to the mother are the most common custodial routines. Sole physical custody granted to the mother remains the most prevalent type of custody situation. Statistics show that 84 percent to 90 percent of custodial parents are mothers; fathers are custodial parents 10 percent to 16 percent of the time.
Best Interests of the Child
Courts now use the Best Interests of the Child doctrine to determine a wide range of issues related to their well-being. The best interest standard means what a judge says it means, but he or she considers a variety of factors in making a decision. Until the early 1900s, fathers were given custody of the children in case of divorce. Many jurisdictions then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the Best Interests standard replaced the Tender Years Doctrine, which favored the mother, but family courts continue to give great weight to the traditional role of the mother as the primary caregiver.
Parents battling over custody damage both themselves and the children, and if the battle between spouses becomes pitched, the court may require a custody evaluation. In this, a custody evaluator - a mental health professional such as a psychologist, or a guardian ad litem, who is a lawyer representing the children - makes recommendations to the court about the best interest of the children. The child custody evaluation can be very invasive and difficult.
The Judge's Decision
The best interests of the child standard gives judges wide latitude in a custody case between battling parents. In general, however, judges consider the age of the children, the living situation of the parents, the parents' relationship with each other, the parents' relationship with the child, the child's preference as well as continuity and stability, and evidence of abuse or neglect.
More than 30 states now have statutes authorizing joint or shared custody even if the divorcing parents do not request it. In this regime, parents equally share in joint legal custody, which refers to equal rights and responsibilities to make major decisions about their children, and joint physical custody, which refers to the parents' participation in the "day-to-day upbringing of the child." Unfortunately, shared custody routines break down when divorced parents demonstrate an inability to cooperate, extreme anger or hostility, serious misconduct, make false allegations about one another, or neglect the child.
When at all possible, courts prefer that both parents share legal custody of their children. Legal custody means having the right to make decisions about the welfare of the children - where they go to school, the religious upbringing, friends and routines.
No lawyer can ever guarantee how a judge may apply custody law in any specific custody case because judges have a great deal of latitude interpreting what the phrase "best interests of the child" means in a given case.
Abuse or Neglect
One of the most important considerations in determining child custody rights is abuse or neglect. Absent abuse or neglect the court permits the parents to decide the custody rights as long as a family court judge approves the arrangement.
An express prohibition on visitation must exist within the decree in order to deny parental visitation rights, but courts may impose restrictions on visitation by noncustodial parents. If a party convinces the court that visitation rights would be injurious to the child, then the court may deny visitation rights. Courts deny visitation when the noncustodial parent abused the child in the past and when the noncustodial parent suffers from a mental illness. Incarcerated noncustodial parents or former convicts are not categorically denied visitation rights.
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THE DON’Ts – Good parenting through divorce has a dimension that is negatively defined. Good divorced parents do not speak badly or make accusations about the other parent in front of a child. They do not force a child to choose sides, or use a child as a messenger or go-between, or pump a child for information about the other parent, or argue or discuss child support issues in front of a child. In short, they do not use a child as a pawn to hurt the other parent.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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