Custody Myths and Misconceptions
Custody litigation can be stressful, and there's a lot of misinformation in popular media surrounding child custody law. I wrote this article to give parents a better idea of what lies ahead and clear up some misconceptions, like:
Mothers will always get primary custody of young children.
The fact is that the Courts favor a 50/50 custody schedule as much as possible. Parents begin each case on an equal playing field. The Court then evaluates the different factors favoring one parent over another to decide what the percentage of custody of each parent should be. The best interests of the child or children are always the most important consideration. The things that will really shift the custody balance are things that might endanger the physical or emotional welfare of the child. Drug use, alcohol abuse, drunk driving, criminal activity; things like this can hurt a parent in custody cases. When looking at these things, though, the Court is looking for current problems. Many parents want to bring up issues from before the child or children were even born. This is rarely relevant unless it is a truly serious issue like a finding of child abuse or a violent or sexual criminal conviction.
Custody is tied to Support.
Custody Courts have no interest in what happens in support Court. Whether a parent pays through the nose or pays nothing at all has no effect on his or her rights in custody court. In PA these two issues have been made completely separate from one another. A good way to turn the Master or Judge against you is to bring up support. The one regular exception to that is where one party can show that the other party's whole motivation for custody litigation is to change the support. Most Masters and Judges will be less likely to award a change in custody if they think that the motivation is financial. They are there to protect the best interests of the children. They expect parents to have the same motivation. I have won more than one custody case because I could show messages from the opposing party offering time with children in exchange for money and vice versa.
My ex will win because he has tons of money.
This is a common misconception among parents facing custody battles. The best interest of the child standard doesn't mean that the kids go to the parent with more money or who can buy the fanciest toys. Best interest is about making sure that the children are cared for, happy, healthy, and loved but not spoiled. Sometimes the parent with all the new toys can be seen as overly indulgent. I have had many cases where custody was split between a parent with a one bedroom apartment and one with a five bedroom house. The size of the bank account does not matter when both parents are on equal footing otherwise.
Where finances become a factor are where the differences are so steep that there are legitimate concerns as to the welfare of the child in one parent's house. For instance, where the less financially secure parent lives with others who have drug or criminal backgrounds or lives in a patently dangerous neighborhood. Another problem is where a parent is unable to provide basic care for the child. In theory child support is there to offset these differences between parents but, sometimes it just isn't enough.
My child has special needs so my ex will get sole custody.
Again, there is no strong bias toward one parent or another even with special needs children. The question in cases with special needs is the relative ability of each parent to address the child's specific needs. If one parent is at home and the other works 50-60 hours a week that may effect the schedule but it won't prevent the working parent from having significant time with his or her special needs child.
Many parents argue that they must be the only care-giver because they have always been the main caregiver. This isn't always the case. The Court will look at whether each parent is able to do the job even if they haven't always done it primarily. With significant, possibly life threatening issues, one parent is frequently made the main coordinator, however, even in these cases it is rare for the Court to cut the other parent out of the equation. If you are seeking to expand custody of your special needs child the main question is whether you are well versed in the care of the child. You need to know the names of doctors and providers, you need to know your child's treatment history and goals, medication, and what resources your child needs in each home. "What is the name of your child's doctor?' or "What are the current treatment goals for your child?" are questions that have lost a parent their bid to increase custody.
If I haven't been in my kid's life, I won't get custody.
This is also a false assumption. Regardless of the reason for a parent's inactivity, if that parent can show that they are ready willing and able to become a productive participant in their child's life the Court will let them. Generally when there has been a long period during which a parent had no contact with a child the Court will order what is Called a stepped-up approach. This usually involves a gradual re-introduction of the parent to the child with ever-increasing periods of custody. Sometimes it may start out as supervised then go to unsupervised short visits that slowly expand to overnights or even weekends. The idea here is to let the child and parent re-establish their relationship while giving the absentee parent a chance to prove his or her commitment to custody.
If the issue that kept one parent away was drug, alcohol, or mental health related the Court may also ask the parent to undergo testing and/or evaluations to prove their commitment to sobriety or treatment. If the question was one of immaturity the Court will want to see a period of stability and responsibility.
My daughter doesn't want to go to her dad's, so she won't have to.
This is a complex issue. The Courts will listen to the "well reasoned" preferences of the child. However, those preferences won't necessarily be enough to outweigh the other parent's right to see the child. The first factor that will impact how much weight your child's opinion is given is the reasoning behind their choice. "Dad is always drunk" is going to be much more effective than "Dad won't let me play my X-box until I'm finished my chores." Many children want to spend more time with the more lenient parent but the Court won't necessarily indulge that.
The second main factor that the Court will consider is the willingness of the parent being rejected to work on improving his or her relationship with the child in question. A parent who is willing to do counselling or take gradual steps toward increasing their custodial time to help the child adjust will be much better received by the Court. In the same vein, a parent who is able to recognize and confront the issues that might have turned the child away will be more successful. If your child is angry because they hate that you are dating again, offer to keep those relationships more private until the child has had more time to adjust to the changes.
Another major factor will be the age of the child. A very small child is easily swayed and may change their mind from one moment to the next. Older children, however, can bring difficulties of their own. As the parent of a teenager I know that making them do something that they really don't want to do can be nearly impossible. I have seen cases where the children were willing to be grounded, threatened, loose their phone, and
suffer endless lectures rather than have to see their mother. I think that it is a decision in that case that these children will regret but in the end, forcing your child to spend time with you can be even more damaging than not seeing them at all.