Courts Control Custody
Courts Control Custody
Fifty percent of all marriages in the United States end in divorce. 50% percent of first marriages, 67% of second and 74% of third marriages are terminated with divorce. Take note however, that none of these statistics document the percentage of broken marriages involving children. Deciding custody is possibly the most difficult part of the divorce process. The two most commonly known forms of custody are joint and sole custody. What people don’t know is that joint custody and sole custody are both extensions of either legal or physical custody. Legal and physical (joint or sole) custody both have one thing in common: their focal point is the best interest of the child. All decisions for each branch are made based on what the parents and the courts agree to be the most beneficial situation for the child or children. The court has the final and most influential say in the custody decisions, regardless of the type that is being granted. There are many controversial issues concerning the decision making of the court on behalf of the child, but much research is done before making these decisions. Despite the opinion of many children, the courts do base their conclusions on what they believe is best for the children. Coming from a “broken home”, I am a strong believer in this. Visitation is always incorporated in any custody decision made by the courts, so parental involvement is never excluded. The different branches of custody include various conditions reflecting the opinions of both the court and both parents.
Sole custody, legal or physical, is when one parent is the custodial parent, and the other non-custodial parent is granted visitation rights. When sole legal custody is granted, one parent has the right and obligation to make decisions about a child’s upbringing. Although the conditions of sole legal custody vary in each state, universally the parent is given the right to make long term choices for their child regarding issues such as schooling, religion, and medical care. Most states are moving away from granting sole legal custody because it eliminates much involvement in the child’s life by both parents, which is deemed unhealthy for the developing child. To gain sole legal custody, the parent seeking the decision is required to prove to a family court that joint custody is not in the best interest of their child. If a parent is granted sole legal custody of a child, visitation is negotiated among the parents and the court. Sole custody is more common in physical custody scenarios. Physical custody is when a parent has the right to have the child live with him or her. Sole physical custody is granted to one parent with visitation rights given to the other. Generally, the courts will not hesitate to grant sole legal custody if the parent petitioning parent provides evidence proving the other parent unfit for joint custody under specific circumstances. These conditions include drug or alcohol dependency, a new partner who is unfit, or charges of child abuse or neglect. These conditions are researched thoroughly by the courts before they make their decisions (this research, as well as visitation rights will be covered later in the essay). Even when sole physical custody is awarded, often the parents will still share joint legal custody, with the non-custodial parent enjoying visitation. In this type of situation, both parents make joint decisions about the child’s upbringing, but one parent is titled as the primary physical caretaker. Sole custody may seem like the only decision for the child, but joint custody is normally better for both the children and the parents.
Traditionally, custody by the mother and visitation and financial support from the father has been the rule, but today joint custody is becoming more common as the best decision. Joint custody, in legal or physical situations, is perhaps the best choice when it comes to custody cases. Today, many states have adopted rules allowing joint custody. In joint custody cases, neither parent has superior rights to the child. Providing considerably more decision making, custodial time, and control between the parents than sole custody, joint custody is the best choice if there are no conflicting circumstances. Generally, the child will spend a substantial, but not necessarily equal, amount of time with each parent. All decision making and responsibilities are shared between the parents, creating a more harmonious experience for the child. If joint legal custody is shared among both parents, they are legally bound to share all decisions concerning the child or children. If one parent is excluded from the decision making process, the offending parent can be taken back to court and the judge with enforce the custody agreement. In an online interview with Deborah Farmer, one of the top divorce lawyers in the state of Indianapolis, Farmer says,
“I am seeing a trend towards more couples agreeing on joint legal custody, but unfortunately, I am also seeing a trend toward couples agreeing on it and than just using it as one more battleground. For example, ‘I want him on Ritalin, you don’t, lets go to court over it’ or ‘I want her to go to Mass very Sunday and you won’t take her.’”
Obviously, it all really depends on the parents disputing. Deborah Farmer is also quoted saying, “My personal perspective is that if a couple gets along well enough to make joint legal custody work it doesn’t matter whether the divorce decree requires it or not. They’re going to communicate and put their child first.”
During joint physical custody a child will have periods of residing with and being under the supervision of each parent. For example, a child will spend four days with the mother and the next four or so days with the father. Other schedules of living can be organized between the parents. If more than one child is involved, it is considered joint physical custody if one child lives primarily with the father and the other child lives primarily with the mother. If joint custody is desired by both parents, the agreement should specifically state the following information: with whom the child will reside and when; visitation for each parent; any restrictions on either parent moving out of the city, county or state with the child; education and religious training; a means to resolve financial responsibility for specific expenses; and means to resolve disputes concerning the child or child. There are separate decisions and requirements depending on the state in which the divorcing couple resides. If joint custody is awarded, the responsibilities and obligations are divided between both parents.
Children of divorce may have conflicting opinions about what the court and his/her parents decided for them. As a product of divorced parents, I feel very strongly that the court made and will always make the right decision for my needs. My mother has sole custody, but my father is give generous visitation rights. My father never abused me or any kind of substance, but my mother requested sole custody because she did not want to have to depend on him to approve of decisions she made concerning my life. My father could have fought for joint custody, but instead he settled for visitation rights. Because he lives in a separate state, he is granted a certain amount of days per year to visit me or have me visit him, as well as every other holiday. It is up to him to organize his schedule to take advantage of these visits, but he is not obligated to his visitation time. I agree with every decision made for me, but I’m aware of many children around the world who do not. In an interview with one child whose father was granted sole custody of him and his three brothers, the subject is quoted saying, “I was never fully aware of the circumstances in which my father was granted custody. But I feel that the mother should play substantial role in the raising of her children, despite the circumstances.” It is very rare that a father is given sole custody over the mother, unless the behavior and actions of the mother are deemed extreme and unfit for a primary parenting role. On the other hand, a girl whose parents have shared joint custody for 14 years is quoted saying, “I feel that joint custody is the best way to go. It enables the child to develop relationships with both parents almost equally. I feel that I have become stronger by dividing my love jointly between the two of them. Even though they don’t get along, the custody they share makes the situation more harmonious.” Despite the circumstances, opinions vary depending on the child and the type of custody granted, but the research put into determining the custody situations is thorough enough for the children and the parents to trust. On the topic of the court making the best decision of the child, specialist Deborah Farmer comments,
“When I started practicing law in 1983, lots of cases were “traditional.” Mom had custody because she’d been a stay-at-home mom, or only worked part time. Dad had “visitation” and that wasn’t a stigma on Dad because he had brought home the bacon and played by the rules of society and everybody expected that. Now, more dads have become more involved in their kids’ lives and more dads, when they get divorced, want joint custody because their friends have it or they want to be able to tell their friends they have it or because they’re genuinely involved and don’t want to be less of a parent to a child than the mom. So a lot if this is societal expectations and gender roles at work. And fewer moms are full-time stay-at-home moms these days.”
As the times have changed, the traditions have changed as well, but the child’s best interest is always the deciding factor.
To decide what is best for the child, the court directs several actions to be taken before making their final decision. Usually, if there is a settlement agreement reached between the parents, and neither parent has been the subject of a child abuse case ect., the agreement is likely to be approved. If the parents cannot agree on a specific form of custody, the courts rely on the independent lawyers of the parents to present the relevant details and evidence. Sometimes, a Guardian Ad Litem-either a lawyer, mental health specialist, or even a trained volunteer is appointed for the child to make an investigation of some sort and file a report with the court. “The Guardian Ad Litem may talk to teachers, doctors, coaches, scout leaders, eighbors ect. To determine their relevant information” informs Deborah Farmer. If a guardian Ad Litem is not preferred, the family may be referred to a psychologist, usually of PhD level, for a custody evaluation which can include of the tasks of an investigation, plus psychological testing. Each parent is assumed to be qualified as a custodial parent for the child, unless they can be proven otherwise. If there is suspicion, there is meticulous research following it in any situation of custody.
Whatever type of custodial decision made, visitation is an important part in a pleasant divorce. Upon separating the child from the dual parent home, it can become a lot to cope either regardless of if sole or joint is decided upon. As time has progressed and moved away from only granting sole custody to the mother, the visitation rights have changed as well. But as shown in Figure A the visitation by the father is still more common. . When I asked Deborah Farmer about a joint visitation schedule she replied: Visitation isdefinitely something more than every other weekend and two weeks in the summer. Even if a court wants to order a traditional schedule, lots of courts are making the alternate weekends include Sunday overnight, and adding a midweek visit which might be overnight, too. So there are lots of families where in a 2-week period of 14 nights, the child might stay with the “non-custodial” parent anywhere from 3 to 5 overnights. I am also seeing quite a few families who agree on alternate weeks (usually exchanging on Friday or Sunday evening) or what is now called a 2/2/5/5 schedule – with one parent Monday and Tuesday, the other parent Wednesday and Thursday, and alternating Fridays/Saturdays/Sundays.”
It all depends on the situation at hand. Visitation or “parenting time” differs among states, parents, and even children. There are separate laws for each state, but there is a common formula used in decision making: Visitation is formulated around the child.
Divorce and custody decisions do not make for a smooth road. Many bumps can be hit along the way concerning the type of custody granted. If parents cannot cooperate, the decision may be made by the judge. Other options include mediation, counseling, and arbitration. No matter what kind of decision is made or what the circumstances are, the main focus is the best interest of the child and personally, I believe that is reflected in custody decisions. The differences between sole and joint custody are pointed out continuously, but there are many keys that play into the bigger picture of the life of the child. Visitation is a very important factor in a successful divorce process and is decided by the courts. The courts always make sure there is bountiful research done before making their decision, and their decision is always right for the child. Behind the eyes of every child with divorced parents are visitation schedules, custody rights, and many others. The parents aren’t the only victims of divorce, but the courts and lawyers hired to make the process less difficult carry out their duties tremendously.
