When David’s wife shared her unequivocal plans for divorce, his mind went immediately to their minor children. Who would get the children? What would be their custody and parenting time arrangement? David knew the tendency of judges to regard mothers as the primary caregiver for young children and to regard fathers as the primary provider. He understood why judges exhibited those tendencies. But David also knew, as he believed that judges knew, that every family is a little bit different and that some families differ a lot. And he believed that his family was one of those different families. David didn’t believe that his wife was interested in being the primary custodian for their children. Nor did David believe that she would be the better custodian between the two of them. He was ready for the custody fight, if that’s what his wife’s announced divorce meant. And he knew he would soon find out.

Custody

Custody battles are things of legend and lore. No one really needs a reminder that custody battles in divorce proceedings can be fierce, tooth-and-nail, knock-down-drag-out affairs. Sometimes, the battles are in earnest, each spouse reasonably believing that they are the better custodian, in the best interests of the children. And many of those cases are truly close calls, where the custody decision could go either way, without depriving the children of a suitable custodial arrangement. Other times, though, only one spouse really, truly, deeply, and honestly believes that they are the best, right, and only suitable custodian. Yet the other spouse may claim to be equally as committed to gaining custody of the children, not because they believe it to be best for the children but because of ulterior motives. Those dynamics are what make custody battles so challenging.

Motives

Motives for claiming physical custody of minor children can indeed extend well beyond the best interests of the children. When a spouse knows it’s best that the children reside with the other spouse, they may still claim custody in an effort to avoid paying child support. For some spouses, child custody is more about the money than the welfare of the kids, or it can appear that way. Custodial parents do not pay child support. Custodial parents typically receive child support from the non-custodial parent based on relative incomes, the number of children, and related factors, as the next chapter further explains. For other spouses, a claim for child custody is a leverage point to gain concessions from the other spouse on property division or other matters more important to that spouse than the welfare of the kids, or so it can appear. And for some spouses, a claim for child custody is a weapon with which to worry and injure the other spouse over the fact or circumstances of the divorce and the differences that caused it. Know your motives and your spouse’s motives, and then choose and advocate for the right motives, which, as you know well, has everything to do with the best interests of your children.

Attitudes

Also try, as hard as it is, to have the right attitude toward child custody. In many divorces with minor children, either parent would make a suitable custodian, even if one or the other might make a somewhat better or much better custodian. Children don’t have to live in a perfect home. Actually, none do. Every parent has imperfections, although they can be hard to admit. Children can suffer developmental harms from overprotective, overbearing, suffocating, helicopter parents, just as they can suffer different harms from underprotective, under-involved, unaware parents. In advocating for your custody of your minor children, be aware of your limitations and your spouse’s capabilities. Keep in mind at all times that your willingness to support your spouse’s relationship with the children is a custody factor. Needlessly and falsely besmirching your spouse’s fitness, especially around the children, can work against your own claim for custody. Keep a balanced and sensible attitude, if at all possible.

Trust

Consider another few words about attitude. Child custody can seem to a parent like a life-or-death matter. As a parent myself, I completely understand the sentiment. Yet if both spouses are basically fit parents, custody is not life or death, as much as it can seem like it. I’m not saying it will happen for you, but I’ve seen spouses devastated at custody awards soon come to realize that the decision was better for everyone, and then later come out smelling like roses in situations far better than they could ever have imagined. Sometimes, not getting what you wish for is better for you and everyone else. Advocate for your child custody. Your children deserve your advocacy and your custodial parenting. But ultimately, in a divorce with minor children, you must trust the system. Beyond vigorous, truthful advocacy, you really have no other choice in a divorce. Non-custodial parents who kidnap their children from the custodial parent against court orders can face severe court sanctions and even criminal charges. Keep your head. Your children depend on you doing so.

Types

Custody often isn’t an all-or-nothing thing. Courts can impose custody arrangements of at least three types: (1) shared custody; (2) physical custody; and (3) legal custody. Shared custody involves the children splitting roughly or exactly equal time between the two spousal residences. Shared custody can be harder on very young children or when the spouses live in different communities too far apart to accommodate consistent schooling. Otherwise, it may work well. Physical custody involves residing with just one spouse, while spending significantly less parenting time with the other spouse. Legal custody involves making major decisions over the children’s welfare, particularly as to medical care, education, and religious observance. 

Joint

One could add a fourth type of custody, joint custody, to the above list. Courts may award joint physical custody to the spouses, assuming they live either together or near enough that the children can access both homes with relative ease, and assuming that the spouses facilitate that equal access. Joint physical custody differs from shared physical custody in that the children may not spend specific days and times at either residence. In shared custody arrangements, the order may be specific as to the number of days and times of year in each residence. In joint custody arrangements, the order may contain no or few specifics. The children simply go back and forth between the two physical custodian parents as they and the parents please, without anyone necessarily counting. Courts may also award joint legal custody, meaning that the spouses must consult and agree on the children’s medical care, education, religious observance, and other major issues. Courts commonly award physical custody to one spouse but joint legal custody to both spouses. In that way, the children have the security, comfort, and convenience of one physical home but the involvement of both parents in major decisions affecting their welfare.

Rights

The spouse with physical custody not only has significantly more time with the children than the non-custodial spouse. The spouse with physical custody of the children can also end up with greater practical rights and advantages in shaping the children’s upbringing. The custodial spouse’s choice of residence, for instance, can go a long way toward determining where, when, with whom, and how the children attend school, exercise, and play. The custodial spouse’s choice of or influence over meals, other nutrition, childcare, clothing, technology, furnishings, athletics, clubs, and entertainment can go a long way toward determining how the children grow, learn, and enculturate. Joint legal custody can give the non-custodial parent a say in the few major things, but having a say in a few major things differs from having first-hand control of the many minor things. By default, the custodial parent can exercise much greater liberty and influence over the children’s upbringing, requiring the non-custodial parent to make special effort to have equal influence through parenting time and the right of joint legal custody to participate in major decisions over the children’s welfare.

Responsibilities

With rights, though, come responsibilities. The custodial parent has principal practical responsibility for the children. If, for instance, the non-custodial parent doesn’t show up for parenting time, the custodial parent is basically stuck. That may be fine with the custodial parent, but then again, it may instead disrupt the custodial parent’s carefully laid plans for the rare free evening or alternate free weekends during the non-custodial parent’s visitation time. The non-custodial parent’s consistent failure to exercise parenting time could eventually affect the non-custodial parent’s parenting-time rights, resulting in a change of the interim or final order. But a miss here and there, or relatively frequent misses, may not affect the parenting-time order at all, leaving the custodial parent to pick up the pieces. For another example, if a child is sick at the time of scheduled parenting time, a strong likelihood exists that the non-custodial parent would forgo parenting time to keep the child as comfortable and at rest as possible. Once again, though, the custodial parent then carries the responsibility of caring for the sick child.

Factors

The common standard for deciding child custody is the best interest of the child. Notice the focus on the child, not the parents. What’s best for the child is what matters, not how custody affects the parents. The best-interest standard in itself doesn’t give much guidance. And so divorce judges generally follow statutory or case-law factors for deciding child-custody disputes, articulating in greater detail the best-interest-of-the-child standard. Although they may differ some from state to state, the factors generally include:

• the child’s bond with each parent;

• each parent’s capacity and disposition to love and care for the child;

• each parent’s capacity and disposition to provide necessities;

• the duration and quality of the established custodial environment;

• the permanence of the proposed custodial home;

• each parent’s moral fitness;

• each parent’s mental and physical health;

• the child’s home, school, and community record;

• the child’s personal preference if old enough to reliably express it;

• willingness to support the other’s relationship with the child;

• instances and probability of domestic violence; and

• any other relevant factor.

Deciding

For judges to decide the best interest of the child on the above factors, they must weigh each factor to determine whether it favors one parent or the other. Judges may go through each factor assigning it to one parent or the other parent, or finding that the factor weighs equally for both parents. A sum of those findings may then tip the scale in favor of one parent or the other on a sort of scoresheet, such as five factors to three, two to one, or one to none. In close cases, the established custodial environment, referring to who has had the child the longest leading up to the hearing, can tip the balance. While one party making more money suggests a greater ability to provide, judges tend to even that factor out by holding that a child-support order can balance that factor. As to the moral fitness factor, a spouse’s involvement with drugs, alcohol, frequent accidents or moving violations in a vehicle, gang or criminal activity, or frequent overnight intimate visits of a member of the opposite sex in the child’s presence can all tip the factor.

Procedures

The procedure for deciding a child-custody dispute can be as important as the factors. Recall that an early interim order based on a referee recommendation may have set the stage for a later ruling on child custody. If the divorce court holds a full hearing on child custody, the judge will listen to the testimony of each parent and any other lay witnesses each parent calls, such as grandparents, siblings, neighbors, and friends familiar with the spouses’ parenting. The judge may also consider school records, medical records, work records, police reports, criminal history records, and other records and exhibits. Teachers, other school officials, investigators, social workers, psychologists, and other professionals may also testify. Testimony tends to be brief. Child-custody hearings may last an hour or an afternoon but rarely go beyond that length. The judge may rule from the bench at the hearing’s end or may retire to chambers to write an opinion and order. Either party may appeal a child-custody decision  upon entry of a final judgment. The likelihood of prevailing on appeal tends to depend on the appellate review standard, which itself depends on the type of error the appealing parent alleges in the child-custody order.

Visitation

Non-custodial parents typically request and gain parenting-time rights, formerly known as visitation. As mentioned above, parenting time typically involves a mid-week afternoon or evening plus alternate weekends, although parenting time allocations and schedules can vary widely depending on specifics. Parenting time also typically includes some larger number of consecutive days or weeks in the summers when the children are out of school, depending on the children’s ages and maturity, and of course the ability of the non-custodial parent to accommodate them. Negotiating parenting time gives the parents greater flexibility. If the judge imposes it in the absence of agreement, the judge may just make it standard parenting time, inconveniencing one party or both parties. Also, as already mentioned above, unfit parents may receive no parenting time or only supervised parenting time. 

Changes

After the entry of a final judgment of divorce, including an order for child custody, child support, and parenting time, the circumstances may change for the former spouses and their minor children. Children grow up, their needs and preferences changing as they do. A boy at age four may cling to mom, while a boy at age fourteen may far prefer dad’s company. The circumstances of divorced former spouses also change, affecting their ability to care for minor children. An illness or injury, for instance, may fell a custodial parent. Parties subject to a divorce judgment and its child-custody provisions may petition the court for a change in custody when they can show a change in material circumstances. The parties may alternatively negotiate and agree to a custody change, approving a stipulated order for the judge’s signature and entry by the court. Custody changes, though, also affect child-support obligations and parenting time. 

Duration

Although the laws may vary in small respects from state to state, child custody and support orders typically last until the child turns eighteen years old. By that time, the law considers the child an adult able to decide on the child’s own where and with whom to live, and to provide for their own support. If the child marries, graduates from high school, or gains court emancipation before eighteen years old, the custody and support order may end at that earlier date, again depending on the specific state law. The child’s death before age eighteen would of course end the support obligation. 

Enforcement

Just because the court orders child custody and support, and parenting time, doesn’t mean that both parties will follow the order. Parties often soon make small and later larger adjustments to custody and parenting time arrangements. If the parties agree, then the court will not interfere. But the custodial parent may ask the court to enforce the order if the non-custodial parent extends the parenting time well beyond the ordered period, without the custodial parent’s consent. Enforcement may take the form of a threat of contempt sanctions, payment of costs, and a loss of parenting time. The non-custodial parent depriving the custodial parent of custody for an extended time, especially without notice of whereabouts or while removing the child from the state or region, may result in kidnapping allegations, criminal charges, and contempt sanctions. 

Termination

Consider one final note: don’t confuse a loss of custody with the termination of parental rights. If you become a non-custodial parent under a family court order, you remain your children’s parent. You’ve just lost their custody for the duration of the order. The termination of parental rights occurs under a different set of protective laws, outside of divorce and their custody proceedings. Termination of parental rights generally requires something significantly more serious than losing a custody battle. Grounds to terminate parental rights can include sexual or physical abuse, the refusal to prevent known physical or sexual abuse by others, neglect, abandonment, and imprisonment for a period longer than two years. Involuntary termination of parental rights may also have to occur in a probate proceeding in another court, not in the divorce court. Parents sometimes voluntarily give up parental rights to enable better care, a more-suitable and secure home, and adoption. But don’t expect to face or pursue termination of parental rights in your divorce proceeding. Custody is the question, not parental rights.

Key Points

• Parents may hotly dispute child custody, out of love for the children.

• Divorcing spouses can also have financial or other motives for custody.

• A positive attitude toward child custody outcomes can be critical.

• Courts may award shared custody, physical custody, or legal custody.

• Joint physical custody is uncommon but joint legal custody is common.

• The custodial parent has naturally greater influence and responsibility.

• Judges weigh custody factors to decide the best interest of the child.

• Judges hear testimony and examine exhibits at child-custody hearings.

• The non-custodial parent receives parenting time unless unfit.

• A change in circumstances may lead to a change in child custody.

• Child custody orders last to age eighteen or high school graduation.

• Courts can enforce child-custody orders with contempt sanctions.

• Custody orders do not terminate parental rights.

Read Chapter 12.