It is important to realize that there are no cookie cutter solutions to child custody. Most counties have “model” schedules that the Courts use as a starting point. Unfortunately, most of these model schedules are outdated in that they relegate one parent to seeing the children every other weekend and one night a week. Sometimes this is a good schedule for the parties, but often it does not give the children enough time with one of the parents. Accordingly, Courts are generally receptive to requests of parents for more equality in parenting time as they recognize that it is best for children to have both parents actively involved.
Parties should be encouraged to agree upon a parenting schedule and allocation of responsibilities that best fit their unique circumstances. Parents should not view children as assets to be divided, but should devise parenting plans that realistically reflect each person’s strengths and weaknesses as a parent. In making these determinations, the issue of child support should not be a consideration. Do not make the mistake of asking for equal time with children when that is impossible with your work or personal schedule simply to avoid paying child support. Similarly, do not deny a good parent equal time with the children simply so you can receive child support. Neither position is fair to the children. Do what is best for your children.
On the other hand, do not shirk away from a custody dispute simply to get a divorce over with if the custody arrangement proposed by your spouse (or ex-spouse) is truly not in the best interest of the children. Doing what is best for your children may involve fighting for their future. Otherwise, you may ultimately need to come back to court to correct the problems that should have been addressed during the divorce. Meanwhile, your child may have suffered emotional or physical damage.
People also often ask about “Shared Parenting”. In the past, the Courts would grant “custody” to one of the parents, who would have control over all major decisions. This was quite harsh. Accordingly, the Courts developed a system where both parents would be recognized as residential parents and custodians of the children and would share in decision making. “Shared Parenting” simply means that both parties have the right to be involved in making major decisions concerning the children. It does not mean, as many people assume, that each parent will have equal time with the children or that neither parent will pay child support. The parties can make any agreement they wish concerning allocation of time and responsibilities under a Shared Parenting Plan. Unless there is a compelling reason why one parent should not be involved in decision making for the children, parties should strongly consider Shared Parenting.
Guardian Ad Litem
Unfortunately, it is not always possible for parties to agree during a divorce. In that case, an attorney can assist his client in developing a parenting plan that serves the best interest of the children. In many cases where the parties cannot reach an agreement, the Court will appoint a Guardian Ad Litem to perform an investigation and make recommendations to the Court. There are several misconceptions about the role of the Guardian Ad Litem (GAL). The GAL is not the attorney for the children. In fact, the GAL does not need to be an attorney, although most courts do utilize an attorney for this role. The GAL will, during the course of his/her investigation, speak with both parties, the children, health care professionals if necessary, and teachers. They may also speak to other individuals who may have important information. After performing the investigation, the GAL will make recommendations to the Court. The Court does not have to follow the GAL’s recommendations, but will give great weight to the opinions of a person the Court considers an impartial third party. In any custody dispute, you need to be sure that the position you are taking is actually in the best interest of the children before taking a risk that third parties will be making decisions concerning your children.
Another consideration is cost. Custody disputes are expensive. Aside from the hours spent by your attorney, you will also be paying for the Guardian Ad Litem who may recommend that the parties undergo psychological exams, which are also quite expensive. If a custody dispute is necessary to protect your children, then cost is not a consideration. You cannot put a price on the well-being of your children. If, on the other hand, your disagreements with your spouse over custody issues are relatively minor, then both parties should consider compromise. I often request that people who are considering a custody dispute reflect upon whether the amount of money expended on lawyers, psychologists and Guardians Ad Litem would be better spent on the children or saved for college.
Modification of Custody
Lastly, issues involving children are always subject to the continuing jurisdiction of the Courts. This means that either party can come back to the Court if there is a sufficient change in circumstances that warrants a modification of the parenting schedule or child support. Accordingly, do not make the mistake in a divorce of giving in on a property issue to “win” on a custody issue. The decision on division of property or spousal support is likely not subject to modification. The custody issue is always subject to modification.