Lots of stressful things go down in a divorce case. Assets are divided. Nerves are frayed and emotions are raw. Dreams of being with your “lifelong soulmate” are dashed, and being single again becomes reality.
However, if you’re a parent, there is absolutely nothing worse than thinking about potentially being apart from your children. At the end of the day, is there anything more important than winning physical and/or legal custody of your children? With two parents battling over the children, it’s very important to understand how this process works.
Let’s examine some of the key factors that play into how custody is decided in a contested divorce case (one in which the parents cannot agree about who should get custody). First, we’ll define some key terms, then introduce things you need to discuss with your attorney.
Defining Child Custody Terms
There are actually two types of child custody that the court will decide upon. The first is physical custody. This refers to which parent the child will live with. In a sole physical custody ruling, the child will live with one parent full time.
In a joint physical custody ruling, both parents will split time with the children. Under a joint physical custody arrangement, both parents should have approximately equal contact time with the children. That may take different forms based on what is in the best interests of the children (taking into account school, extracurricular activities, etc.)
The second type of custody is legal custody. Legal custody is the ability to make major decisions for the children. These decisions usually fall into four major categories: health, education, extracurricular activities and religion. The court can award sole custody–one parent has complete discretionary control or joint custody.
In a joint legal custody decision, both parents are required to work together to make decisions in the best interests of the child.
As you can see, the term “custody” actually refers to quite a few major decisions. It’s very important to have a clear game plan with your attorney as to what types of child custody you are fighting for in court and what arguments you will make to win that custody level.
How Is Custody Decided in Contested Cases
First, be aware that children who are 14 or older may make a custody election, which tells the court which parent they want to live with. The judge does get to make a final decision in these cases, but will often defer to the wishes of the child, especially if it is in the best interests of the child.
Research says that children benefit when they have a close relationship with both parents. Given that fact, the court prefers to enter parenting plan schedules which provide both parents with meaningful and valuable time with their children. It is very rare that a court would limit the amount of time a parent spends with their child. Here are three reasons why the court may limit parenting time.
- The parents live far apart from each other–usually one parent lives out of state.
- A parent’s work schedule prevents frequent and regular visitation.
- There is a history of abusive behavior towards one spouse or the child.
The biggest determining factor in a judge’s decision to award custody is what is in the best interests of the child. Judges award custody to the parent who can ensure that the child will be safe, secure, happy and in an environment that fosters appropriate growth.
Here are some questions that the judge will consider when making a custody decision. Please understand this list is not comprehensive; your attorney may have others:
- What is the physical, mental and emotional health of each parent?
- Which parent has the best relationship with the child?
- Which parent has the more stable living arrangement? Does the child have their own bedroom at that parent’s location?
- If the child has special needs, which parent is better equipped to deal with them appropriately?
- Are both parents employed? Do both parents earn enough wages to cover the costs of raising a child?
- What are the motives of each parent in requesting custody?
- Does the child have significant relationships with extended family members?
- Are both parents displaying a willingness to allow the child to have a meaningful relationship with the other parent?
- Does either parent have a history of physical violence or child abuse?
- Which parent has obtained recommendations from psychologists or a guardian ad litem?
- Which parent does the child say they would like to be with?
The Best Thing to Do in a Contested Custody Case
The most important thing you can do if you are seeking custody in a contested divorce case is to hire an experienced attorney. They can help minimize potential negatives and highlight all your positive aspects to a judge to increase your ability to win custody.
If you are in the metro Atlanta area (Henry, Clayton, Fulton and Fayette counties), Family Matters Law Group can help you. With years of experience in difficult custody cases, we can assist you in navigating potential traps and pitfalls. Simply use our convenient online contact form to set up a consultation. We look forward to hearing from you.
