Any divorce can be stressful and financially straining. Often, it's even worse when children are involved. Child custody isn't very complicated, but because it can generate extreme emotional intensity among the spouses, the lawyers, the courts and the children whose fates are in the balance, it can be quite a doozey.

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. This can be done if you and your spouse work at it.

The Basics

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.

A court has the duty to protect the interests of children. As a result, parents who've done everything they're supposed to do still may lose custody, simply because the judge believes it's in the children's best interests.

Even the Best Laid Plans

Another fact about custody that's often misunderstood is that neither parent has the authority to bind the court or the child on custody arrangements in the future. Only a judge can make those decisions.

So forget that plan you and your spouse are discussing where 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 bests interests of the children to force them through another change. Is that fair to you? No, but it may be best for the children.

Keeping Things Stable

Nearly every state has a presumption in favor of the status quo when it comes to children. That is, before a judge will force any change in a child's life, somebody needs 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.

Getting Help

The kind of lawyer you need for a child custody issue depends on the situation and what you're trying to accomplish. You're looking for a lawyer in your area with a reputation for success in tough, adversarial divorce fights, particularly custody fights, if you and your spouse are at war over physical custody (and that's the only way to describe this kind of custody fight).

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, then you'll need a calm, savvy advisor who can represent your interests in court and also alert you to some 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.

Be Aware of the Costs

When custody is at stake and emotions run high, it's easy to lose track of the cost of the battle. 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.

Take Stress Out of the Equation

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, when parents are in the throes of divorce, they generally focus on themselves and their own 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 is to not fight over them. They're not bargaining chips, either, to be used to scare one spouse into agreeing to other terms of the divorce, like spousal support or who gets the house or car.

Negotiate Now, Calmly

Where your children will live, how often they'll will visit, who's responsible for transportation and school and everyday expenses are just a few of the items you and your ex-spouse need to discuss. It's best to get started now learning to work things out together. It's going to be a long hard road for both of you, and especially for your child, if you can't work together.

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.

Child custody doesn't have to a "dispute" at all. Knowing what to expect beforehand and how to handle yourself can go a long way toward making sure you and your ex-spouse come up with an arrangement that's fair to you both and your child.

Questions for Your Attorney

  • When we first started talking about divorce, my ex-spouse promised I would get custody of our children, but now my ex is demanding custody. What can I do?
  • Do our children have any say in who gets custody?
  • How can I change a child custody order?

Tagged as: Family Law, Child Custody, custody negotiation, family lawyer