Divorce can be painful enough for you, but what’s it doing to your children? They may be upset, confused, and fearful and blame themselves for your divorce. Joint child custody after divorce has become the norm, so you should be prepared to share your parenting responsibilities with your spouse, and children should be told that both of their parents will continue to be important parts of their lives.

If you and your spouse have a child or children, child custody will be an issue that needs to be decided as part of your divorce. Like all other important issues, unless the parties reach an agreement, a child custody arrangement will be forced upon the parties after a trial. Through negotiation and mediation, parents can control the child custody outcome. That control is lost if there is no agreement and the issue is litigated.
There is legal custody, where a parent is empowered to make more important decisions like healthcare and schooling, and physical custody, where the parent is physically with the child and makes practical, day-to-day decisions. Joint custody means that these decisions and activities are shared, though the time each parent has with his or her children may not be exactly 50%. School schedules make that impractical, and parents may live far enough apart that travel back and forth may not be easy.

Child custody orders aren’t carved in stone. They can and should be changed if circumstances affecting the children change significantly. The overriding concern of a judge deciding the issue is the “best interests of the child.” Those interests are paramount when child custody is ordered initially as part of an agreement or a trial takes place or if one or both parties want a modification later on. One parent may want to move far away; a parent may suffer a serious illness or develop addiction problems; or a parent’s religious views may change over time so that they want to instruct a child in a religious belief or prevent the other parent from doing so.

Mothers used to be favored when it came to deciding child custody. That’s generally no longer the case, though child custody decisions are based on the facts of your particular situation. If one parent works very long hours, travels a lot or has a history of domestic abuse or addiction, that parent probably will play a lesser role.

In most cases where there aren’t extremes in behavior, parenting becomes a joint responsibility and divorcing couples will have joint custody. One parent may have legitimate concerns about the welfare of a child when he or she is alone with the other parent. Those concerns will need to be well founded and documented in order for them to seriously impact the parental rights of the other party.

Child custody decisions are based on state law, and they vary from state to state. There are normally guidelines in state law that spell out what a judge should consider when deciding a child custody matter (sometimes called parenting time). Parents may be described as “custodial” (they have physical custody of the child at a particular time) or “noncustodial.”

A “noncustodial” parent may have custody of his or her child. The labels were created to avoid assumptions about whether the mother or the father has more custody and to identify each parent for purposes of assigning specific parenting time or duties.
If under a child custody order the father has custody during Thanksgiving vacation, at that time he is the custodial parent. If under the order the mother has custody during Christmas, she is the custodial parent at that time.

In divorces where there is true animosity between the parties, children could be used as part of the struggle between them. One parent may want to hurt the other by denying or limiting access to a child through the divorce process. Alienating a child against the other parent is wrong for many reasons, including the fact that it can poison what might be a good relationship with the other parent, it may poison your relationship with your child, and can it can cause the child serious emotional harm.

One factor judges take into consideration when deciding custody is the willingness of one parent to cooperate with the legal process and his or her openness to allow the child to spend time with the other parent. Trying to keep your child away from the other parent without a good reason could backfire on you. Your spouse may be the one with more time, not you.

Child custody issues can be highly emotional issues when a divorce takes place. The best approach is to take a step back, try to see things as the judge would and do your best to come up with an agreement. Unless your spouse poses a genuine problem for your children, the two of you will need to work out your differences and do what’s best for them. In most cases that means working together to raise your children.

ABOUT THE AUTHOR: McNeely Stephenson

McNeely Stephenson, a law firm in New Albany, Indiana, has faithfully served the people and communities of Indiana and Kentucky for several years in a variety of legal areas. We have the experience and resources to help.

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