Custody disputes

Custody disputes can, of course, happen in or out of a divorce context. I talk about them separately because they present their own issues, regardless of marital status.

Those issues are, broadly speaking, legal custody (meaning who makes the big, life-altering decisions about the children) and what everyone used to call physical custody (where are these children going to live?)

I say “used to,” because increasingly judges disfavor that phrase. They prefer to speak in terms of a “parenting plan.” They seem to think that if you avoid formally declaring someone the winner of “physical custody” you avoid conflict.  Not so, in my experience. The children have to live somewhere and see each parent on some schedule. So, choices must be made. And rebranding those choices as a “plan” does not avoid disagreement.

If you are reading this, you likely already have a disagreement. Either about where the children live, when they will see the other parent, or some other major decision. The Courts will decide those issues by what we call the “best interests of the children” standard. In plain terms: they try to do what is best for the kids. No doubt that is what you also want.  What you need to do is persuade the judge that the children will do best if he or she sides with you.

The job of a lawyer in a custody dispute is to help gather and present relevant facts about the children’s best interest to the court. Or, usually, even before that to a “guardian ad litem” the court appoints to investigate the children’s welfare. And that word “relevant” is not just a legalism. A lawyer can help you differentiate what facts are likely to actually “move the needle” with your assigned judge and which are not worth mentioning. You may not like it, for example, that your kids eat cocoa puffs for breakfast at the other parent’s house, but nobody is losing parenting time over breakfast cereal. Cocoa puffs all day every day, on the other hand, would be neglect and very much worth mentioning. Then there is the issue of presenting those facts to the Court so that they will be believed.

In short, the first question you must answer when facing a custody dispute is whether this is something you need to do for the children’s sake. Will their lives be better? Do you feel a duty, as a parent, to try to change something about their custody? If the answer to both those questions is “yes,” then hiring a lawyer with experience in this area is step one.