When considering a divorce, most people are primarily concerned
about their children and what the custody arrangement will be. Both
parents have a natural, legal right to be the custodian of their
children. The Court must decide what arrangement is in the best
interest of the children.
Usually the best interest standard focuses on stability for the
children. Evidence as to the pattern for taking care of the children
during the marriage is important. For example, the Court will look
at who stayed home to care for the children or if both parents
worked, who took the children to the doctors, to school and day
care; who got up at night to take care of them when they cried; who
went to PTA.; coached them in sports, took them to church and worked
on their homework. Typically the parent who has the closest bond to
the children, evidenced by their close relationship during the
marriage, is awarded custody, and the other parent is awarded
visitation. Sometimes one party is primary custodian during the
school year with visitation to other party, and in the summer the
arrangement is switched. The reason for switching is to give the
child the stability of one home during the school year, and maximum
time with the other parent in the summer.
It is important to give some thought as well to the children's
preferences, if they are old enough to express them. While the
court's decision is not controlled by the children's wishes, a court
usually will consider those preferences in reaching a decision.
In some cases it is appropriate to have another attorney
appointed to represent the children, either to determine if their
therapist should be able to testify or to report what the children
have to say and to make recommendations to the court about what is
best for the children. Sometimes they are appointed to handle all of
these matters. This additional expense is often well worth it, as it
protects the children from being pulled into the litigation.
Aside from the physical custody arrangements, there also is the
matter of legal custody. Legal custody is the right to make major
decisions about your children's welfare, such as what school they
will attend or in what religion they will be raised. In an ideal
world, both parents communicate positively with each other about
these issues even after divorce, and joint legal custody is
successful. If they are unable to do so, then sole legal custody may
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Barbara R. Trader, P.A.
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