You and your spouse are getting a divorce. Together you have a couple of wonderful children. You cannot agree on much of anything. You both would like to stay living in your home. You do not want to pay spousal support but your spouse is demanding it. You think your children should continue to attend private school; your spouse thinks those schools are too expensive and that the public schools would be fine. The list goes on and on. Eventually all will be resolved by way of an agreement or a judge will decide those issues.
The one issue that is often most painful, most difficult, and the most expensive is custody.
There are two types of custody: legal and physical.
Legal custody is the easier of the two to resolve. More often than not it is deemed to be joint. That means both parents have equal access to medical and academic records. Having joint legal custody requires you to agree with the other parent on many important topics:
- Enrollment in or leaving a particular private or public school or daycare center
- Participation in particular religious activities or institutions
- Beginning or ending of psychiatric, psychological, or other mental health counseling or therapy
- Selection of a doctor, dentist, or other health professional (except in emergency situations)
- Participation in extracurricular activities
- Out-of-country or out-of-state travel
If you cannot agree a court will decide. The real effect of joint legal custody is that both parents are precluded from making unilateral decisions that affect the children.
The more troublesome issue is physical custody. That is the label for the orders which dictate who has the children when.
The best way to approach physical custody is to “stand in the shoes of the children.” They are entitled to an opportunity to know and love both parents. The law is intended to protect the children’s rights to be with both parents. The physical custody schedule is to be fixed and predictable. The idea is that the children’s interests are best served if everyone knows where they are supposed to be and when. Holidays and school breaks are mapped out in a way that allows the children a chance to spend time with both parents.
How Do You Win a Custody Case?
People ask me that weekly. The answer is you do what the court wants you to do:
- Share the children with the other parent.
- Do not criticize the other parent in front of the children.
- Do not remove the children from the other parent. Do not remove them from their schools. Do not move with them. Do not hide them.
- Do not make the children keep secrets from, or about, the other parent.
- Do not make the children choose between you and the other parent.
These are general guidelines only. There are exceptions: when physical, emotional, and/or substance abuse issues exist the case will be handled differently. In those cases the first concern is for the safety of the children. Sharing the children may not be immediately appropriate in those cases until proper safeguards can be implemented.