Berman & Asbel, LLP

For the sake of the children, keep child custody out of courtrooms whenever possible

While in my car the other day, there was a discussion on the radio about Custody Lost Due to shifts in traditional roles, working mothers now face even tougher challenges-including unparalleled custody wars, an article in Working Mother magazine.  Much of the article was a discussion about the parallel trends of more women working and being primary family breadwinners than in the past and more men being stay-at-home fathers and the impact in child custody court battles in terms of men more frequently being awarded primary physical custody of children than in the past.  There is debate about whether working women are being penalized for working or whether this is a reflection of equal treatment in the courts with judges, whose priority is to look to the best interest of the child awarding more custodial time to the parent who is able to spend more time with the children. 

However, what I really want to focus on here is a point that is made in the last page of the article and which I try focus on strongly in family law practice.  Children should not be prizes to go to whichever parent can prevail in a court fight.  It is often the case that a couple can no longer stay together but whether or not they do, they remain parents of their children.   If the parents are unable to stay together in one household, they must do everything possible to create a cooperative, at least civil if not friendly, relationship for the benefit of the children.  Accusations and recriminations over who does more to parent the children or who spends too much time at work or who is providing more are destructive and pointless.  One of the basic facts of life in divorce is that when one household is divided into two, the living standards for both parents most likely will decline and it becomes more likely both parents must work.  It is also necessary that the children be given the love and attention they need.  The parents should, whenever possible, look to each other as their number one help resource for taking care of the children and should be willing to communicate freely and openly.

This is not always easy but my experience from almost 20 years in law practice has shown that when parents separate and divorce, all - parents and children - do better when the parents can resolve their custodial issues without battling it out in court.  They also save a lot of money on legal fees and other expenses.  While I handle many disputed cases, I also work on custody agreements and even do mediation with both parents.  Here are some tips on having a better outcome for child custody when parents divorce or separate:

1.  Never, ever, ever use children as pawns against the other parent.  Do not pump them for information about the other parent's life.  Do not try to get them to choose you over the other parent or otherwise put them in the middle.  If a child tells you something that is truly concerning, look into it but don't use children as weapons.

2. Child custody need not be a war to be won but should be an exercise in cooperative parenting.   Sit down together and look at work schedules, schedules for kids and coordinate.  One of the biggest peeves that I have is when a parent is scheduled to have physical custody of their child and has a work or other obligation and then, rather than seek assistance from the other parent who lives relatively nearby, immediately seeks out paid child care.  It's ridiculous.  If a parent cannot be there at a certain time, the first phone call should be to the other parent (assuming they live in reasonable proximity).  Only if the other parent cannot or will not help should other child care be sought.

3.  Talk, talk, talk.  You are both the parents.  You are both responsible for the upbringing of these kids.  Share information.  Discuss concerns.  Do not jump to the conclusion that a child's problem is somehow the other parent's fault.  Divorced or separated parents do not have to be friends but they must cooperate in their shared enterprise of raising the children they brought into the world.

4. Never speak negatively of the other parent in front of children.  Each parent must have the other parent's back in front of the children.  If you must get anger off your chest about your ex, save it for when you talk to a friend, another relative or a counselor. 

5.  Try to accept your ex as being a good parent even if he or she does not do everything the same way you would.  My clients who accept that their ex is also a good parent and that their children benefit from the relationship with the other parent have less stress about child custody and parenting than those who see any time that the children spend with the other parent as being some sort of penalty or punishment.

I realize that there are some cases where a parent is truly unfit or even a danger to children and in those cases, strong legal action may be necessary.  However, in most cases, both parents love their kids and want to do what is best for them.  The children do better when the parents can set aside whatever anger or bitterness they may have from the breakup of the marriage or relationship and focus on working together to both be loving caring parents for their kids.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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