Child Custody: We Disagree

The question of “Who gets custody of the kids?” is one of the most difficult decisions for parents and their children, when parents separate.  Child custody and visitation rights are never considered to be final. As situations change, parents can come back to court to request changes. But how does the court decide which parent gets custody of the children, and how much? What if the parent’s disagree about child custody?

Family law does not favor either the mother or father in custody cases. The law looks closely at the relationship of each parent to the child. While grandparents and others may seek custody, there is a presumption in favor of the natural parents, meaning that the court is more likely to favor the natural or biological parents, because they are seen to have the closest relationship to the child, in most cases.

Either one of the separated parents may petition the court for Child custody. If the parents cannot agree about who should have child custody, the court will grant custody, either solely to one of the parents or joint custody to both of them.

Regardless of any agreement the parents have reached during the course of a divorce, the courts will look at  the matter of child custody to determine the best interests of the children. They look at several factors, so it is important to remember that no one factor is more important than any other. Factors such as these are weighed in the court’s decision:

  • Primary Care Giver  – Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
  • Fitness  – What are the psychological and physical capacities of the parties seeking child custody? The court may also consider evidence of abuse by a party against the other parent, the party’s spouse, or any child residing within the party’s household (including another child).
  • Character and Reputation of the parents seeking child custody
  • Agreements  – Is there a custody agreement already in place?
  • Ability to Maintain Family Relationships  – Who will be able to keep the child’s family most intact? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any adverse action on the part of the other parent?
  • Children’s Preference  – The decision of the court may be considered reversible error if they won’t hear the child’s preference. The court has the discretion to interview the child outside the parents’ presence. The child’s ability to understand the difference between truth and fiction and the child’s maturity will be the guideline for whether a child may be heard. Also, the court has the power to appoint an attorney for the child in contested cases.

If an agreement can’t be worked out between the parents, mediation is an option.

Mediation is a process in which a professionally-trained mediator acts as an impartial third party to help parents develop a parenting agreement that will provide for the continuing care of their children. Mediation helps parents focus on the future and how their children will spend time with each parent, how major decisions will be made regarding the children, and any special co-parenting issues that may cause problems for the parents.