Getting a Divorce? Focus on Your Kids First

Posted July 14, 2009 in Your Family & The Law by

We’ve all heard about nasty divorces. Maybe a family member, friend or co-worker got caught up in one. Or maybe your own divorce turned bitter, where every little detail became a prolonged negotiation, where each party was geared up for a battle–and got it. The worst of these divorces is when even the kids become pawns in their parents’ fight.

July is National Child-Centered Divorce Month. It’s a time to recognize that when a marriage ends, and when minor children are involved, parents should put aside their differences to focus first on their kids, and what’s in the kids’ best interests. This isn’t the time to be vindictive. A prolonged child custody fight doesn’t help children who are already dealing with the emotional turmoil of their parents’ failed marriage.

Custody Disputes

At its core, a custody dispute attempts to answer the question, "What custody arrangements will best serve the interests of the child?" This requires a case-by-case examination of the child’s needs and the advantages presented by those seeking custody.

Most custody disputes involve a mother and father during or after a divorce. Others, like the custody case for Michael Jackson’s children, involve a third party (usually a relative) who is seeking custody after a parent dies or is incapacitated. The courts start with a presumption that parents are in the best position to look out for the welfare of their own child. This presumption can be overcome by establishing that a parent is not fit or able to best care for the child. In making these determinations, the courts look to various factors, established by state statute or case law.

Factors Involving Parents

If you’re trying to have a child-centered divorce, you should ask yourself, "What’s in the best interests of my children?" Don’t think about it as a popularity contest, or a situation where one parent "wins" and another "loses."

Among the factors to consider:

  • Which parent is the most suitable custodian based on character, temperament and stability?
  • What is the child’s relationship with each parent?
  • What is the educational level of each parent?
  • What child-rearing skills does each parent possess?
  • Does either parent have an illness that may harm the child?
  • Which parent will provide the best home environment?
  • Does the child have stronger emotional ties to one or the other parent?
  • Does the child have special needs that can be better met by one parent over the other?
  • With whom has the child been living on a regular basis?
  • What type of extended family relationships exist?
  • What is the employment status of each parent?
  • What is the financial status of each parent?
  • What is each parent’s motive for seeking custody?
  • Is either parent unfit to have custody?
  • Which parent is the most likely to allow the child to continue his or her relationship with the other parent and extended family?

In making a custody decision, the court may also look at where each parent lives, the local school system or a parent’s other relationships. While being unfit to have custody is an automatic disqualifier, the remaining factors do not all carry the same weight. A parent seeking custody cannot just look at all the factors put a check mark in each column where it weighs more in favor of one than the other, then total up the scores. Judges give different weight to each factor in each case.

If you and your spouse can give the judge honest and candid answers to each of these questions, it will help resolve the child custody issues in a timely manner, without animosity or ill-will that your kids are sure to pick up on.

Factors Involving the Child

Some states have lists of statutory or case law factors that must be considered by a judge in making a decision. Before determining custody, the judge will look at some or all of the following non-exclusive factors by focusing on the child, rather than the parent:

  • The sex and age of the children
  • Their emotional, social, moral, material, and educational needs
  • The respective home environments offered by the parties
  • The characteristics of those seeking custody, including age, character, stability, mental and physical health
  • The capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children
  • The interpersonal relationship between each child and each parent
  • The interpersonal relationship between the children
  • The effect on the child of disrupting or continuing an existing custodial status
  • The preference of each child, if the child is of sufficient age and maturity
  • The report and recommendation of any expert witnesses or other independent investigator
  • Available alternatives
  • Any other relevant matter the evidence may disclose
  • Here also, no one factor provides a final resolution. It should be noted that factors that do not affect the relationship between the child and the person seeking custody are not to be considered.

    While some states require a judge to address each statutory factor in making a decision, others permit a judge to just state that he has considered all the factors. In almost all cases, the judge will explain which factors weighed the heaviest and the basis for the decision as to who will have custody.

    To assure that a custody dispute does not become a custody battle, it is best if the parties can reach an amicable agreement, by employing an objective review of the same factors.

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