Starting a family is one of the most important things you will ever do in life. Unfortunately there is no guarantee that the relationship aspect of that family will last forever. If you have children and you find yourself in the regrettable situation of either divorce or separation it is important not to lose sight of the fact that any decisions you make will have a profound impact upon your children’s lives. Whether the separation is friendly or not the issue of custody must be dealt with.
Custody – Understanding the Terminology
During any custody disputes it is important that you understand the different terminology which will be used. Physical custody gives the parent the right to have the child live with them on a daily basis, and involves making all day-to-day decisions such as what is for dinner, what is bedtime. Legal Custody on the other hand grants the parent the right to make significant decisions regarding the long-term welfare of the child such as schooling. Custody can be granted to either parent or can be granted to both jointly. Within a joint custody arrangement the parents can then establish what is known as a parenting plan. This may involve a one-week rotation between parents or indeed a timetable based around school holidays. The larger decisions regarding welfare are then made jointly. In situations where one parent has sole physical custody the other parent will normally be granted visitation rights. Once custody has been resolved then issues such as child support must be decided upon.
Resolving issues of Child Custody: Mediation
The process of deciding custody can vary depending on the ability of the parents to reach agreement. At all times the best interests of the child must be considered as paramount. Therefore if custody can be resolved through mediation rather than litigation this is to be considered more favorable for the interests of the child. In mediation both parents, and sometimes the children, will meet with a court appointed and trained mediator. The mediator will then talk through all of the issues with the parents and attempt to bring them to some kind of an agreement. If the custody dispute is part of divorce, especially a bitter divorce, it is sometimes hard to separate the two. However in this case the children will suffer. Parents are choosing to end their relationship with each other and sometimes children can be used as pawns in this. In such cases often mediation will fail and it will be forced into the court system.
Custody Litigation
When mediation has failed the matter will then be brought before the court. The court may, at its discretion, order an investigation to be carried out by social workers to establish the best interests of the child. A report of this investigation, with recommendations, will then be submitted to the court.
If the court feels it is in the best interests of the child it may also appoint a guardian ad litem to represent the child. This is a lawyer who acts on behalf of the child, in a guardianship role, throughout the court process.
If, following the report being presented to the court, both parents are still unable to reach agreement the court will request arguments from both sides. At this stage the matter is no longer in the control of the parents but is now up to the judge to decide.
At the hearing children may sometimes be called as witnesses. This is not always in the best interests of the child as having to choose between parents is a very traumatic experience for a child. While courts may choose to interview the children in order to establish their wishes a decision will not be made on this interview alone. At all stages the lawyer, as an officer of the court, must act in the best interests of the child even if this is in conflict with the wishes of the parent the lawyer is representing. Therefore you will not be able to force your lawyer into calling your child as a witness.
Child Support
After resolving the issue of custody the court will then address the issue of child support. How much is paid, and by whom, will depend on individual state laws and also the income of both parents and the custody agreement that has been reached. These variables will then be put into a formula and a suitable amount decided upon.
The break-up of a relationship is not a good time for anyone. However it is still possible that the best interests of the child can be protected providing they are factored into the entire process. If you are involved in a custody dispute always remember that how you behave will ultimately impact upon the welfare of your children.
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