Fortunately, most divorcing parents don’t fight over custody, but when they do, it’s a doozey. Not because it’s complicated (it rarely is) but because it generates such incredible emotional intensity among the parties, the lawyers, and the courts, as well as – oh yes – the hapless children whose fate is being decided.
When a husband and a wife are disputing in court over a house, a retirement plan, or the family business, it can become obvious at some point that the cost of the fight is approaching and perhaps exceeding the value of the asset, and the parties will often take steps to reach agreement, or at least to control the costs of the fight.
But this can never be the case with a fight over child custody, since one can never put a price on child custody.
Because of this simple fact, it’s not unusual to see parties in divorce (or after divorce) spending many times their net worth in a fight over custody of their children. While the fight is under way, they simply lose all touch with the cost.
The very term "custody" encourages conflict between parents, because they naturally assume that somebody "wins" custody and somebody loses it. It doesn’t have to work that way. Children need a close, loving relationship with both parents.
One of the first things to understand about custody is that it’s just not fair. It’s not fair to either parent, and it’s certainly not fair to the children.
And a court is charged with the duty to protect the interests of children, not to be fair to either parent. Because of this, a parent who has done everything he or she is supposed to do still may suffer an adverse ruling, simply because the judge believes it is in the best interests of the child.
Another fact about custody – often misunderstood – is that neither parent has the authority to bind the court or the child on custody arrangements in the future. Only the judge can do that.
So forget that plan you and your spouse are discussing in which the children are going to live with the other parent for a year and a half while you’re finishing school and then come to live with you after you have your degree. When that time comes, the judge may very well decide it’s not in the interests of the children to force them through another change. Is that fair to you? No, but it may be in the best interests of the children.
Nearly every state and province has a presumption in favor of the status quo when it comes to children. That is, before a judge will force any change in the lives of children, somebody will need to convince the judge that there’s either something really bad about the present arrangement or something that would be dramatically better about the child’s life after a change. If nobody can show that, the judge is likely to leave the present arrangement unchanged.
The kind of lawyer you need for a child custody issue depends on what you’re trying to accomplish. If you and your spouse are at war over custody (and that’s the only way to describe a custody fight), you need the biggest ugliest gun you can find. Custody fights are a distressing war of attrition in which the goal is to be the last one left standing.
If you’re really in a custody fight, you need to ask around and find one of the lawyers in your area who has a reputation for success in tough, adversarial divorce fights, particularly custody fights. And you need to figure out how you’re going to pay for it.
On the other hand, if you and your spouse are trying to work through arrangements for your child and both of you are working toward a common goal of being good parents for your child, you need a calm, savvy advisor who can not only represent your interests in court but also help alert you to some of the issues you’re likely to face as a parent after the divorce. The skills needed for this are quite different – and more complex – than those needed for the full-scale custody fight.
For reasons discussed above, it’s easy to lose track of cost when you and your spouse (or ex-spouse) are dealing with custody issues. So it’s particularly important to keep the lines of communication open with your attorney about how much you’ve spent on your legal bill.
You may want to work out an arrangement in which your attorney summarizes for you each month (or periodically when you request) how much of your original retainer remains unspent, what major expenses are on the horizon, and what your attorney estimates the total cost of your case could be.
Although no good attorney would be willing to tell you exactly how much a custody fight would cost because there are too many variables, an informed estimate can be a good tool for both of you. If you see that estimate continuing to increase, it can be a good catalyst for a heart-to-heart with your attorney about cost.
Parents going through divorce are fond of telling each other and the world that the children are their most important focus – that they’re doing only what’s best for their children. In reality, however, this is excruciatingly difficult, and parents rarely do it. When they are in the throes of divorce, they focus on themselves and their struggle. If they are able to focus on the children (and some parents are), they rarely fight over custody. The very best way to care for your children in the midst of a divorce is not to fight over them.
You and your spouse are going to be negotiating your parenting arrangements at least until your child is married, and probably beyond that. Where the child will live, how often he or she will visit, who will make what arrangements for transportation, who will pay for what expenses, all of these questions are subjects for negotiations between parents. Among other things, that means you might as well get started now learning to work things out together. If you don’t, it’s going to be a long hard road for both of you and especially for your child.
That said, please know that parents often use custody as a cynical bargaining chip. A father, for example, who has no realistic chance of winning custody and even no real interest in having the children live with him, may threaten to sue for custody because he knows it will terrify their mother and prompt her to negotiate away some of her financial rights. Or a mother may use time with the children as a powerful tool – a way to punish their father for an extra-marital relationship.
One of the most important assets you can carry into a negotiation over custody and visitation of children is a cool head. Your children need both their parents, and they need parents who will cooperate to be good parents even while they’re negotiating the issues of their divorce.