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Child Custody
Divorce in itself is trying enough. When children are involved it can become even more trying and emotional and parents often loose sight of what is in the best interest of their children. Unfortunately children often become financial hostages in a divorce when child custody issues are being decided.

Prior to the divorce a temporary child custody arrangement may be put into place. This can usually be done without the courts intervention if both parties can reach an agreement. Temporary custody arrangements are not necessarily what the final custody arrangement will be. The agreement should be well thought out and comprehensive. It is best to put it on the court record to make it binding.

TYPES OF CHILD CUSTODY
There are two fundamental issues with regards to custody:
  1. Physical or residential custody - The parent that the children will live with has physical custody. This parent is referred to as the Residential Custodian

  2. Legal custody - Which parent will make the decisions on behalf of the children concerning health, education, religion and general welfare.
The most common form of custody is joint legal custody. This is where the children live with one parent (residential custodian) while the other parent has visitation rights. With joint legal custody, both parents make the decisions on behalf of the children concerning health, education, religion and general welfare.

Another form of custody is joint physical custody,often referred to as shared parenting. This is when the child resides with both parents for a significant period of time. This arrangement does not always work out to be an exact 50/50 split. In order for this type of situation to work, there must be cooperation on both sides. The parents would also have to live in close proximity as not to affect the child's schooling. A few years ago there was a trend towards awarding this type of custody, however recently it has been determined that this may not always be in the best interest of the child.

 Finally there is sole legal custody. This is when one parent has the right to make all the legal decisions regarding issues such as health, education, general welfare and religion. This type of custody is not very common anymore.

When the divorce is finalized both physical (residential) and legal custody will be determined.
THE CUSTODY AGREEMENT

The purpose of the custody agreement is to put in writing the details of the custody arrangement agreed upon. For the custody agreement to work it is essential that both parties be flexible and make every attempt to encourage and respect the relationship of the child with both parents. Don't assume anything and keep an open mind. This is often easier said than done when in the midst of the turmoil that naturally goes with a divorce. Keep in mind you and your spouse is getting the divorce, you are not divorcing your children. What if you can't come to an agreement on custody? Then be prepared for a custody battle.
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THE CUSTODY BATTLE

Unfortunately, a battle is exactly what it will turn into. Before you reach the point of court intervention to decide custody think long and hard about the long term consequences. A custody battle puts the child right smack in the middle of your battle. Why are you fighting for custody? Are you fighting FOR custody or fighting so that your ex-spouse DOESN'T HAVE custody? Is it in the best interest of the child? If you've determined that it's the right thing to do for the children to go forward, what can you expect when the court intervenes?
  • The court will determine what is in the best interest of the child when making the decision.

  • If the court feels that neither parent is acting in the best interest of the child a guardian ad litem may be appointed to help in making decisions on the behalf of the child.

  • Some states strongly take into consideration the wishes of the child depending on their age; some states do not consider the child's wishes at all, without regard to age.

  • Traditionally, the judicial system leans towards deciding in favor of the mother in custody cases. However, it is no longer assumed that the mother should be the primary caregiver.

  • Unless the situation is so obvious that one parent should have custodial rights over the other (such as in drug abuse or physical abuse) a court ordered independent evaluation may be ordered. The evaluation is usually done by a court appointed mental health professional such as a psychologist or a social worker. A thorough evaluation can include the following: interviews with all the parties involved (individually and possibly with the parent and child together); psychological testing of both parents and the child; review of school records and or conversations with teachers; review of medical records and developmental history; review of legal records, such as the papers filed regarding the divorce, any possible domestic disputes and any criminal records of either party involved. Be prepared for the evaluation to take at least four to six weeks if not longer. Be prepared for a time consuming and costly battle.
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If you decide to pursue a custody battle be prepared for the court to decide against you Irregardless of how strongly you believe you would be the better parent and should have custody of the children. Be ready to accept the courts decision and move forward to work with your ex-spouse to raise your children in a way that is best for them.

NEVER use a custody battle as a chip in negotiating a better financial settlement. Once the battle has begun, everyone will be scarred including the children. So think long and hard about the consequences of your actions and always keep the children's best interest in mind, long and short term.
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