How to Retain Custody of Your Child or Children During Divorce

When filing for divorce, one of the most challenging parts of the process is not splitting property or separating accounts. It's deciding who will have custody of the child or children. Highly contested custody cases can ultimately harm the child or children involved. And, sometimes, courts may act to bar one parent from having regular contact and limit their input on their own child's upbringing. Losing the ability to be a positive influence in your child or children's life can be scary to a parent; however don't lose hope. Here are some tips on how to retain custody of your children in a divorce.

Types of Custody

When a child is born, biological parents each have custody of their child. No order is truly necessary as long as the parents work together to raise their child; however, custody has many aspects.

Physical custody of a child means that the child lives in the home with a parent. Legal custody relates to the ability of parents to make decision, such as educational, religious influences, and medical treatment, regarding the child. Having sole custody means that one parent can make all decisions. Having shared or joint custody allows both parents to have input.

Many folks confuse visitation with custody, but visitation is not the same. Visitation allows one parent, who is the child does not live with, to have access. Visitation can be in-person, on the phone or even through virtual means. The intent of this form of parent-child contact helps foster a healthy relationship with the non-custodial parent.

General Considerations

When a court awards physical custody to one parent over another, the court has made a determination that the child is better suited in one parent's home or household versus the other parent's home or household. The court will consider financial stability, emotional stability, familial supports, educational opportunities, and even the comments and desires of the child.

When a parent does not obtain physical custody, the court is not often saying the parent is a bad parent. The judge is basically deciding that the other parent can better provide for the child.

Best Interest of the Child

Any decision about a child, whether it's custody or visitation, is govern by the precept of "best interest." Children are young, impressionable and need a positive healthy home environment. Courts, sometimes with the help of Guardian ad litems, seek to make sure that the parental home can provide for the child's physical as well as emotional needs.

The Process

In seeking a custody change, a parent can file a petition for custody with the appropriate family court (juvenile and domestic) in their area. Once the petition or motion is filed, the court will set a hearing date.

During that hearing, whether represented by counsel or not, the parent seeking custody should be prepared to present evidence, not just opinion, in support of their request to amend their custody arrangement and order. In presenting evidence, the parent should have documentation to offer and witnesses to testify.

What to Prove

In gaining custody of your child, a parent must offer the court information about the parent child relationship, the parent's ability to provide a safe, stable home, and a parent's ability to help their child have a continuing positive relationship with their other parent.

A parent seeking custody can offer pay stubs to prove job stability, have family members and friends come speak about their parenting styles, or even call a minister to testify as to activities that their family or children are involved. While tooting one's horn is never harmful, a parent seeking to retain custody must demonstrate to the court that they are very involved and active in their child's general care and future plans. Some examples of things a parent may want to show a judge can include the fact that they volunteer at their child's school, take their child to doctor's appointments, and even read them a story every night.

While the parental relationship may be strained, a parent seeking custody must show their willingness to co-parent and their ability to set aside their personal feelings to ensure that their child visits with their other parent. In those cases where the other parent has been disinterested, violent or negative toward the child, a court must consider this evidence. In those cases, a parent may not need to push their child into a continuing relationship which may be emotionally harmful to them.

When it comes to child custody cases, there are no real winners or losers. Children suffer when they are drawn into conflicts between their parents, but conscientious parents know will want what's best for their children and not use a custody battle as a means of harassing the other parent. Seeking to obtain or regain custody of a child or children can be successful as long as the parent is motivated by the needs of their child or children.