Divorce is a draining process. For many, especially those going through it for the first time, it’s a barrage of legal drafts and the unsolicited advice from friends and family can just feel overwhelming. Not to mention the emotional stress of separating from a spouse. The question of child custody only adds to the stress and emotions you are experiencing.
Hardly anybody likes getting divorced. Unfortunately, it can get quite combative. Despite the emotional stress, though, there comes a time when spouses need to hunker down, put their personal interests aside, and do their best to fight through the fogginess when kids are involved, here’s everything you need to know about child custody from how to approach the topic to whether or not there’s a gender bias in custody cases.
Form a Parenting Plan
In Washington, we don’t use the term “custody”. Instead, it’s referred to as a “Parenting Plan”. We’ve seen a variety of these, as each one is different, particular to the needs of the family. Yet the success of each one is determined by one thing – the cooperation between the parents.
When divorce happens, parents have the opportunity to determine the Parenting Plan themselves. Once it is agreed upon by both parents, they submit it to the Court for a judge to authorize. The judge’s responsibility centers on one thing – the best interests of the child. If the plan supports that, then it is highly likely to be authorized.
What An Effective Plan Looks Like
A good plan is a thorough plan – it incorporates all aspects of the child’s life, is realistic about the parent’s capabilities, and is sustainable over time. Some parents plan short-term, failing to realize the plan needs to cover the child’s life until he/she reaches the age of 18.
While making your plan, here are important questions to consider:
It Must Include the Finer Details
Beyond the big questions, a number of more particular details must be considered by the parents as well.
Parents Can’t Always Form an Agreement, Though
Ideally, parents will determine this plan together, or with the help of a mediator. A pleasant agreement doesn’t always happen, though. One parent may have strong views on the level of involvement the spouse may have, or the spouse’s capability in being a responsible parent. When the parents are unable to come to a mutual agreement, this is frequently where lawyers need to step in. It’s unfortunate, but a necessity in certain situations.
While child custody laws may vary from state to state, they all have the child’s best interest in mind as the central concern. That still leaves a little up for interpretation by the judge, but here are some of the factors you can expect judges to take into consideration:
The most obvious and cut-and-dry factor is that if there is conclusive evidence of a child being abused or neglected by either parent. This can lead to limited visitation rights or an outright ban.
It used to be the standard belief that younger children should live with their mothers. While this isn’t the go-to choice by default like it used to be, many judges still think it’s best for the child.
There is a tendency to favor the mother at younger ages, but when children get to about 12 years old, this is where the judge may feel they are able to articulate sound reasoning for favoring one parent over the other. While some states require a child’s input, others prefer not to bring them into the mix at all.
Another consideration is how each parent relates with the child. How involved was each parent in their child’s upbringing? Were they only less involved because of circumstances out of their control, such as difficult work hours? A judge will consider all sides and factors when making their decision.
Whether the child will be living in full custody with one parent or they share custody, the living conditions will come into play. The judge will likely want to keep as much stability in the child’s life as possible. This may include favoring the parent who will remain in the family home, since it’s the environment the child is most familiar with and will help minimize change for them. Sometimes the custodial parent will be awarded the family home for this very reason.
Other living arrangement factors will be considered as well, such as how far a parent is from the child’s pre-divorce residence, school and extracurricular activities. If a parent is sharing a place with a non-family member, that can also have an impact.
There are many other factors a judge will consider in a child custody case. They will almost always be directly or indirectly related to having the child’s best interest in mind. As a parent who wants to win custody, you must show that you will provide stability and continuity in their lives and that any ill will that may exist with your spouse will not create unnecessary stress for the child.
Traditionally speaking, courts have heavily favored mothers in rulings on primary caregiver status. The presumption was always that if one parent had to be chosen, the mother was almost always the preferred choice.
Some of that may have been based on outdated gender stereotypes, such as fathers not being particularly nurturing to their children, or even worse, outright abandoning their paternal obligations. Then there are the outdated gender roles of fathers being away from the home at work while mothers are full-time stay-at-home caregivers.
Now, both parents are more often than not participating in the workforce, and more fathers are speaking out for their rights to be an equal, or even better choice as the primary caregiver for their children.
Some argue that the tide has changed in recent years, with fathers seeing a significant improvement in child custody outcomes.
A study by the Institute for Research on Poverty at the University of Wisconsin–Madison found a significant shift away from mothers being awarded sole custody. Between 1996 and 2007, Wisconsin mothers who got sole custody dropped from 60.4 to 45.7 percent. Joint custody jumped from 15.8 percent to 30.5 percent.
There may even be a shift towards more mothers providing child support. In fact, a 2012 survey by the American Academy of Matrimonial Lawyers found a significant increase.
But is the perception of a trend favoring fathers a reality? If you look at U.S. Census data, it’s not so optimistic. From 1993 to 2007, fathers awarded custody have remained low and within the small range of 15 to 17 percent. However, it is true that the dollar amount of child support awarded to men has increased over the years ($4,557 in 1993 and $5,239 in 2007).
That said, men aren’t awarded child support as often as women. Of those men who were awarded custody, significantly less are given child support as compared to women with custody (40 percent vs. 57 percent).
There are a number of factors the courts consider when ruling on child custody, all of which come back to one common theme: what’s in the best interest of the child? Believe it or not, this wasn’t always the case. The tender years doctrine dominated for most of the 20th century. It held that mothers were always the better caretaker for young children (13 years old and under), unless the father could prove the mother was unfit. In recent decades, that’s been replaced by the best interest of the child doctrine.
While laws have been altered to give men a better chance to win sole or joint custody of their children, the data shows it is still an uphill struggle. If you want to fight for your custody rights in a divorce, you need an experienced attorney who understands the law and will have your best interests in mind.