Gaining Primary Custody
Custody can be the most hotly contested aspect of divorce when parents can’t agree to a parenting plan. Courts use various tools to get to the bottom of custody disputes, from custody evaluations by trained professionals to speaking with the children involved, in some circumstances.
The whole process can be intimidating and overwhelming for parents who don’t want to settle for visitation, but you can take a few common sense steps to try to tilt the odds in your favor before you get to court.
Every state ultimately bases custody decisions on the best interests of the children, not those of the parents.
Many states have statutory lists, factors included in their legislative codes, that judges must consider. Typically, courts are not supposed to put any more weight to one factor than another. All issues should be judged collectively.
If you’re headed into court to wage a battle for custody, familiarize yourself with your state’s best-interests factors. Get a handle on what the judge in your particular case will be looking at.
Although these factors can vary from state to state, some are relatively common.
YOUR RELATIONSHIP WITH YOUR EX
The law takes a firm position that children have a right to meaningful time with both parents, and a best-interests factor that frequently appears in state codes favors the parent who promotes and facilitates time for her children with their other parent.
The flip side to this is that the judge will most likely take a dim view of a parent who consistently interferes with visitation, or worse, who tries to damage or even sever her children’s relationship with the other.
Unless you have strong evidence that your ex is abusing your children or otherwise putting them at risk, don’t obstruct their time with him. If you do have such evidence, Contact attorney Anthony Moreno now.
YOUR PERSONAL LIFE
If you’ve moved out of the marital home and you’re living something resembling a single life again, you may have already sealed your fate. You’ll have parenting time, not primary physical custody. In other words, your kids won’t live with you the majority of the time. They’ll spend a couple of overnights with you on weekends.
If your ex remains in the marital residence, it’s unlikely that a court will uproot them, forcing them to pack their bags and toys to leave the home they’ve always known, and move into new digs with you. Of course, there are exceptions, such as with abusive situations. But if all other things are equal, and both you and your ex are great parents, residence can be a deciding factor. If you want custody, don’t move out without first consulting with child custody attorney Anthony Moreno.
If the marital home isn’t an issue — for example, you’re going to sell it and divvy up the proceeds — keep in mind that your new home must provide suitable living conditions for your children. A bachelor-pad efficiency apartment won’t do; your kids will need bedrooms. In fact, you should provide all the same amenities at your home as your ex’s residence boasts. Your children should reside in a safe neighborhood. Check the crime rate of any area you’re considering moving into. Remain in their school district if possible.
Your home environment goes beyond your four walls. Take a good look at your friends and acquaintances, people who frequently spend time there. If your childhood buddy likes to dabble in recreational marijuana, you might want to maintain your relationship with him off-premises.
Clean up your own act as well. Don’t drink and drive. It’s a foregone certainty that if a DUI turns up on your record, your ex will use it against you in custody court. Don’t date yet. Wait until the ink has dried on your final judgment of divorce. Be mindful of anything you say or post on social media.
You may have “unfriended” your ex, but it’s likely that you share other friends who will love to spread the word about anything you’re up to, particularly if it can be considered unsavory.
YOUR CHILDREN’S FEELINGS
Some states allow older children to speak privately with judges so they can express their preferences for a custodial parent. Most base this on the child’s maturity, not his chronological years.
If your child expresses a strong preference to stay with you, bring this to the attention of your lawyer. In the meantime, be careful about saying or doing anything that your ex can spin as an attempt to sway him. Courts will consider a child’s reasonable preference, particularly if he’s an older teenager, because judges are well aware that it’s difficult to impossible to force a 17-year-old to live somewhere he does not want to live.
It could quite possibly put him in a dangerous situation should he decide to run away instead, or he’ll persistently turn up on the noncustodial parent’s doorstep regardless of the terms of your final judgment of divorce. But judges want to know that the child’s choice is not based on which parent is promising him new wheels or which one will lift the old weekend curfew.
Make sure the rules in your house are the same as or similar to those in your ex’s home, and save the expensive gifts for later.
Even if you do everything right, you’ll need the best attorney you can find if you’re about to enter into a custody battle. This is particularly true if your ex has lawyered up. Unfortunately, custody can come down to more than who is the more suitable parent.
You’ll need a strong advocate on your side, not only to advise you on rights and wrongs, but to fight for you in court.