As you probably already know, child custody cases can be extraordinarily emotional and confusing, both for the parents and for the children. There are so many misconceptions about custody cases, mostly because they are not what you see on television and child custody arrangements are dependent on so many different factors. Regardless, custody will be determined taking into account the best interest of the children using the facts specific to your situation.
Before I get to common myths about child custody cases, it is important to understand what are the main custody issues that will be decided.
There are two types of custody, legal custody and physical custody. Legal custody is who gets to make the major decisions affecting your children, such as where they go to school, what pediatrician they see, and what religion they are brought up in. These are not the day-to-day decisions, but rather the most important decisions that affect their wellbeing. Legal custody can be joint, meaning that the parents must share in these decisions. It can be sole, meaning that one parent gets to make these decisions. Sometimes, parents have joint legal custody, but one parent has tiebreaking authority in the event there is a stalemate.
Physical custody is where the children reside on a daily basis. Physical custody can mean that the children live primarily with one parent while the other parent has a specific visitation schedule. It can mean that the parties share time with the children on an equal basis. And it can mean anything in between.
Common myths about child custody are as follows:
Only a Judge can decide our child custody arrangement.
Not only is this not true, but the fact is that most child custody cases are decided by the agreement of the parents. There will be ample time before your case gets to a custody trial for the parents to negotiate an agreement. This can be done informally through a conversation between the parents and/or their attorneys. Or it can be done in a more formal setting such as mediation.
It is also important to note that coming to an agreement is nearly always better than having a trial. No one will know you or your children better than the parents. Having a complete stranger (a Judge) who will hear about your family for a few days or less make a decision that will affect you and your children for the rest of your lives is not ideal.
The mother is always awarded primary physical custody.
There was a time many years ago when mothers were presumed to be the best custodian for the children. This comes from the traditional family model of the early to mid-twentieth century, when the typical mother stayed at home with the children while the father worked. Obviously, this changed a long time ago, and there is no longer a presumption in favor of the mother. Instead, and as previously stated, the custody arrangement will be determined using the best interest of the children’s standard using the facts of your specific situation.
Children can choose which parent to live with.
Despite what you see on television, children do not get to decide which parent they will live with. I often get the question of when will children get to decide. The answer is never (or at least not until they are 18 and adults). If a child is of reasonable age and maturity to express an opinion of who they want to live with, some Judges will take that into account when making a custody determination. But the child’s preference will only be one of a number of factors that the Judge takes into account when making a decision.
A parent can withhold visitation if the other parent doesn’t pay child support.
This myth is especially dangerous because it could have some serious consequences. Judges look at child custody and child support as completely separate issues. If you withhold visitation, regardless of whether the other parent is paying child support, then you could be subject to some serious penalties, including potential jail time. Additionally, a Judge could completely change the child custody arrangement and even make the other parent the primary custodian.
There are other remedies if one parent isn’t paying child support, but withholding visitation is not one of them.
Child custody cases are complicated.
If you find yourself in the middle of a custody battle, you need to find an experienced child custody attorney. Contact the attorneys at Krum, Gergely & Oates to find out more about how we can help you and your family.