Chapter 7 Custody Disputes

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 7 Custody Disputes

The Low Road: Fighting It Out in Court

How Courts Handle Custody Disputes

How to Argue for Custody

Factors a Judge May Consider in a Custody Dispute

Your Kids and the Court Process: Custody Evaluations

If the Custodial Spouse Interferes With Visitation

If One Parent Wants to Move Away

Drug and Alcohol Abuse

If You Have or Had a Substance Abuse Problem

If Your Spouse Has or Had a Problem

What if you think your spouse's ideas about custody are all wrong for the kids, and the two of you just can't agree about time-sharing? What if you are convinced that the kids would be much better off staying with you the majority of the time, with your spouse having only weekend visitation, but your spouse insists on 50-50 custody? What if your spouse doesn't comply with the visitation schedule you've established, or drinks or does drugs in front of the kids? This chapter addresses all these difficult custody problems and explains what a custody trial will mean for your kids.

The Low Road: Fighting It Out in Court

When it comes to custody disputes, the high road can become a bit rocky—but once again, take a deep breath and think about what's best for your kids. It's almost always better for kids to spend time with both of their parents, and in most circumstances, that's what a court is going to order. How much time and effort (not to mention money) are you willing to put into trying to limit your spouse's contact with the kids, knowing that you're likely to be unsuccessful? Go to mediation and try to work something out—and be sure you are truly making every compromise you can that puts the kids first.

Also, make sure your desires are consistent with reality. Do you work 70 hours a week? If you do get more time with the kids, who will be taking care of them when you're at work? Are you really available to parent, or are you just trying to get the other parent's goat by contesting custody? Remember that your kids' well-being is at stake here, and take a good hard look in the mirror. If you're resisting shared custody, ask yourself whether the things that you think make your spouse a weak parent are really all that serious. Are you really concerned about your kids, or are you just trying to control things?

How Courts Handle Custody Disputes

If you're fighting with your spouse about custody or visitation, prepare to be deeply involved with the court system. In fact, your first stop should be a mediator's office to see whether you can avoid a full-blown custody trial. Even if you run right out to your lawyer and ask for a court hearing, the court will send you to mandatory mediation with a court mediator before you can have your day in court. Go to mediation as the court requires—or meet with a private custody mediator chosen by your lawyer.

Courts in some states have special programs to handle what appears to be an increasing number of high-conflict custody cases—and if you go to court repeatedly over issues involving your children, you could end up involved in such a program. In these programs, you might be assigned to one judge who follows the case from start to finish. (Otherwise, it's more likely you'd appear in front of a number of different judges over multiple court dates.) In addition to having one judge oversee the case, you could be required to meet with a social worker for counseling before you can schedule your divorce trial. Some judges appoint "parenting coordinators" who meet with battling parents regularly to monitor how things are going in terms of day-to-day compliance with the court orders. This keeps the judges from having to micromanage disputes such as when a parent comes back to court complaining that the other parent didn't pick the kids up from school on time and should be punished with a change in the visitation schedule.

Even in moderately conflicted cases, judges often order parents to attend child-rearing classes and require them to draw up parenting plans. In Texas, for example, each divorcing couple is required to set up and follow a parenting plan—the court even appoints a parenting coordinator to assist the divorcing parents in figuring out the plan, which must include a process to resolve future conflicts.

How to Argue for Custody

When you file your first court papers asking for the divorce (or respond to your spouse's papers), you state in general terms what you want in terms of custody. For example, you state whether you agree to share joint legal custody or are seeking sole custody with visitation to your spouse. In most states, you're also required to file a statement describing where and with whom your children have lived for the past five years, to comply with a law called the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). See "Interstate Custody Fights," below.

Interstate Custody Fights If parents live in different states, which court decides custody issues? The answer comes from a law called the UCCJEA, which most states have adopted. It's designed to do two things: prevent parental kidnapping, and give information about where children in a divorce are living, so that the court knows whether the children are under the court's authority (jurisdiction). If your spouse moves during the course of your divorce and tries to file custody papers in another state, you'll need a lawyer. The law about which state gets to decide custody issues is complex and the decision is important, because once a state has jurisdiction over a child custody dispute, it's hard to move the case to another state.
If you want to learn more about these rules, a good place to start is a publication by the Department of Justice, which you can find at www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf.

If you want the court to issue a temporary custody order while your divorce is pending, you'll probably move quickly on to a motion hearing (described in detail in Chapters 3 and 5). Either you or your spouse will file a motion stating what you want, and the other will respond, arguing for something different. You may also submit declarations—written statements by you and possibly from witnesses, giving the judge facts that you think support your position. You'll then go to court for a hearing, where the judge will make a temporary order. That order will be binding until you either agree to change it or have a full trial, after which the judge will make a permanent order.

Factors a Judge May Consider in a Custody Dispute

Nearly all states use a "best interest of the child" standard in disputed custody cases. This is a rather amorphous standard, and one that lends itself to judges' subjective beliefs about what's best for children. Most states' laws include a list of factors for judges to consider, and there are some that are nearly universal. There's a debate in child development circles—at least as those circles interact with custody rules—about attachment in very young children, and the wisdom of scheduling overnight visitation in cases where the divorce occurs early in a child's life. If you are in that debate, you will find expert opinions on either side, and you'll probably want to consult an attorney about the views of local judges.

The Evolution of Custody Rules These days, most judges believe that it's good for children to have ongoing and regular contact with both of their parents. But it hasn't always been that way. Back in the 1800s, fathers almost always got custody, because of their role as "head of the family." In the early 20th century, the preference shifted to mothers, especially in cases involving very young children (the "tender years" doctrine). That rule prevailed for many years, but as more women entered the

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