A. Introduction

Ordinarily parents make decisions about their children together. But when parents divorce, the hostility between them sometimes causes them to disagree on what is best for the children. In addition, divorce presents a whole new set of child-rearing challenges. Even the best parents may find it useful to consult a child development expert for help in meeting these challenges.

Issues related to children can present challenges for your lawyer as well. While your lawyer’s loyalty is to you, your lawyer also has an obligation as an officer of the court to keep the best interest of the children in mind, even if that interest is inconsistent with yours.

B. Legal and Physical Custody

Some states make a distinction between physical custody and legal custody. The terminology varies from state to state.

Physical custody is the responsibility of having the children live with you. The parent with whom the children are at the time has the responsibility for making day-to-day decisions about them. Day to day decisions include what the children eat and wear, who they play with and when they go to bed. Legal custody is the right to make important long-term decisions affecting your children’s welfare. Long-term decisions made by the parent with legal custody may include the children’s education, religion, and non-emergency medical care.

Many variations are possible. There can be joint legal custody and sole physical custody, and vice versa. Usually the parent without physical custody has visitation rights, also called access or secondary physical custody. The terminology is less important than how the arrangement works in practice.

C. Joint Custody

There is no one standard joint custody arrangement. Some parents alternate weeks with the children, others alternate months. Still others divide the children’s time unequally, but in a manner that meets the needs of each particular family. Parents who work out these arrangements themselves are usually more creative than courts are when the parents can’t agree. Legal custody, in which the parents share the right to make certain decisions for the children, can also be joint or divided in appropriate cases. Joint custody is not necessarily appropriate in every case.

D. Allegations Of Child Abuse

Allegations of child abuse, whether sexual, physical, or psychological are serious. Unfounded or false claims are harmful to the children and obscure the real issues. Judges and lawyers will try to protect children both from a parent who is an abuser, and from a parent who fabricates such a claim.

Some states permit, and others require, disclosure of any information necessary to prevent a parent from harming a child. Lawyers, and others, may be required to reveal any information that indicates there will be a substantial risk of abuse to the child, or to reveal information necessary to prevent abuse. These laws vary from state to state as to which occupational groups (such as lawyers, social workers, psychotherapists, teachers, members of the clergy) are permitted or required to report child abuse.

E. Custody Litigation

1. Mediation

When parents can’t agree on issues of custody and visitation, many states require the parents, and sometimes the children, to participate in mediation. The parents meet with a mediator, who may be a member of the court staff. It may be a person with extensive training and experience. The mediator tries to help the parents reach an agreement. Some parents hire a private mediator to help them solve their custody and visitation problems.

2. Investigation

Sometimes the court will order an investigation and recommendation by a social worker or mental health professional. The investigation may include interviews with the parents, the children, their teachers, their day care providers, neighbors, doctors and anyone else who is significantly involved with the children. The investigator usually writes a report and makes recommendations to the judge. The recommendation can be helpful in reaching an agreement. If no agreement is reached, and the custody or visitation dispute must be decided by the court, the judge will probably read the report and be influenced by it.

3. Lawyer or guardian ad litem for the children

The court may appoint a lawyer or a guardian ad litem, or both, to represent the children or look out for their best interest in a custody or visitation dispute. The roles of each vary from state to state.

4. Trial

If after investigation, negotiation, and mediation, the parents are still not able to settle custody and visitation issues, these issues are presented to the court for decision in a trial in which witnesses are called and arguments are presented. Then the matter is out of the parents’ control as the judge decides what arrangement to impose on them.

5. Children as witnesses

Parents often want to know if their children will be called as witnesses. Professionals advise against involving children in court proceedings because it is a very traumatic experience for them. This is equally true whether the dispute is over custody or something else. 

Many people incorrectly assume that at a certain age children have an absolute right to pick the parent with whom they will live. Many courts have developed the custom of interviewing the children. However, the interview alone will not determine the court’s decision.

You may want your lawyer to talk to your children. Although opinions vary, many lawyers will refuse, believing that such direct involvement in the case is very hard for children and not in their best interest.

F. Child Support

The amount of child support which you will have to pay or be entitled to receive will vary from state to state, and sometimes between regions within a state. It will depend on income, the custody arrangement, and other factors. The amount of child support is usually determined by guideline formulas. These formulas have the advantage of making the amount of support more predictable and the disadvantage of being too rigid, and therefore inappropriate in some cases.

G. Misuse Of Children

In the heat of divorce proceedings, it’s easy to lose sight of the fact that the parents are getting divorced and not the children.

It is inappropriate to raise custody and visitation issues to gain an advantage in negotiations over financial issues. Such tactics only heighten the emotional tension and make settlement more difficult. Your lawyer is not ethically permitted to raise custody or visitation issues in order to gain an advantage in financial matters. You should not ask your lawyer to act contrary to this ethical obligation.

H. Your Conduct With Your Children

The behavior of parents before and after divorce has a great influence on the emotional adjustment of their children. The following guidelines may be helpful:

• Put your children’s welfare first. Never use your children as a weapon against your spouse.

• Be sure your children have ample time with the other parent. They need it.

• Visitation should usually not take place in the children’s home.

• Don’t introduce your children to your new romantic interest until the children have adjusted to your separation and your new relationship is stable.

• Don’t bring your children to court or to your lawyer’s office. 

• Keep to the schedule. Give the other parent and the children as much notice as you can when you will not be able to keep to the schedule. Be considerate.

• Be flexible. You may both need to adjust the schedule from time to time. 

• Giving of yourself is more important than giving material things. Feverish rounds of holiday type activities during every visitation period or lavish gifts may be viewed as a crude effort to purchase affection, and is not good for the children.

• Do not use your children as spies to report to you about the other parent.

• Do not use the children as couriers to deliver messages, money or information.

• Try to agree on decisions about the children, especially matters of discipline, so that one parent is not undermining the other parent’s efforts.

• Avoid arguments or confrontations while dropping off or picking up the children and at other times when your children are present.

• Don’t listen in on your children’s phone calls with the other parent.

• Maintain your composure. Try to keep a sense of humor. Remember that your children’s behavior is affected by your attitude and conduct. 

• Assure your children they are not to blame for the breakup, and are not being rejected or abandoned by either parent.

• Don’t criticize the other parent in front of your children. Your children need to respect both parents.

• Do not let guilt you may feel about the marriage breakdown interfere with discipline of your children. Parents must be ready to say "No" when necessary.

• You are only human. You cannot be a perfect parent. When you make a mistake, acknowledge it and try to do better next time.

I. Some Questions and Answers About Children

1. I once had a brief affair. My husband says he will take the kids away from me. Can he? Misconduct or fault which does not involve the children is seldom significant in determining child custody. Tell your lawyer about these concerns.

2. I have had some problems during my marriage with depression. I saw a psychiatrist. My spouse says I’m crazy and will lose custody of the children. Is that right? The mere fact that you have sought help for the problems you have encountered in your marriage is not a basis to lose custody if it is otherwise in the best interest of the children for you to have it. In fact, the ability to recognize the need for and to get professional help is usually seen as a good sign of maturity and responsible action, both desirable characteristics in a custodial parent.

3. I am a good father. Are judges prejudiced against fathers? In most states both parents are equally entitled to seek custody of children. However, the court is likely to give primary custody to the parent who was the children’s primary caretaker while you were married.

4. I want to move out of state and take our child with me. Will I be able to? Whether a parent is allowed to move away with a child depends on the law of your state and the facts of your case. In some states, to move your child without court permission is a crime.

SOURCE: American Academy of Matrimonial Attorneys, Divorce Manual; A Client Handbook