Disputes over children can become the most intense issues in family law cases. Parents love their children, and do not want to see their children harmed by their parents’ breakup. Many people undergoing divorce suffer a breakdown in communication and trust with the other parent, so these disputes can be very painful. Children need both parents in their lives, but it can be very difficult for parents to arrange that when the parents are transitioning toward separate households.
I have had many years of prior experience and training as Court-appointed Minor’s Counsel, which has helped me to see these cases from the point of view of the children. I am also a parent. My law practice is therefore a very child-centered one. Even though I now represent adults, I ask that my client also consider the children’s needs in making their own plans for custody and visitation. The children’s needs are likely to change over time, as the children go through different developmental stages.
There are two basic types of custody: legal and physical. Both of these types of custody will require that a decision be made during the family law case. Legal custody means being able to make basic parenting decisions about the children. Most parents will share joint legal custody and will attempt to make those decisions together notwithstanding their family law dispute.
Physical custody means where the children live. There are countless variants of physical custody, as each child and each family will have different needs. There is a common misconception that joint physical custody requires an equal timeshare between the parents, but that is not true. Another common misconception is that there is an entitlement of each parent to an equal timeshare with the children. The legal standard for determining custody and visitation is the best interests of the children, which does not mandate an equal timeshare, although an equal timeshare may be appropriate in some cases.
Parents who cannot resolve their custody and visitation disputes outside of Court will attend mandatory child custody recommending counseling at Family Court Services, for all custody and visitation disputes pending before the Court
Parents whose dispute is not resolved at Family Court Services may meet with a recommending private mediator, have a co-parenting counselor appointed, or even undergo a custody evaluation. Some custody and visitation disputes end up being decided in Court if the parties still cannot agree.
I work closely with my clients to make sure they are prepared for these processes, and to help them determine how to protect their children’s best interests. Because I believe children need to be protected from involvement in their parents’ disputes to the fullest extent possible, I do not allow clients to bring children to my office if the children are over 18 months old. I also will not meet with or interview a client’s children. Every effort is made to avoid having children present during service of process. New rules now permit the testimony of children in some limited circumstances, but that is a determination to be made by the Court, not by parents or attorneys
The most intense custody and visitation disputes may not be resolved except by a trial. Because such trials can be expensive and extremely stressful for divorcing parties, I make ongoing efforts to settle the case if at all possible. If that is not possible, then I work with my clients, and with opposing counsel if possible, to plan for an efficient trial that fairly presents all the evidence so the Judge can make an informed decision that is in the children’s best interests.
Clients who are mediating their divorce will attempt to resolve their custody and visitation differences with their private mediator rather than submitting those disputes to a Judge. Mediation gives clients more control over what will happen with their children. This is likely to be better for the children, as the parents know and love their children, but the Judge and other Court personnel do not. When I am the mediator in such cases, I encourage my clients to consider the children’s needs, and to consider all possible alternatives that might meet those needs. Mediation gives clients an opportunity to be creative in crafting alternatives that a Judge might not consider, but that might greatly benefit the children.
Clients in collaborative divorce cases will have a significant additional amount of support and information in resolving their custody and visitation disputes. Often the parties’ coaches can be very helpful in focusing the parties on the children’s best interests. In some cases, a child specialist will be brought into the case, perhaps to interview the children, but also to help the parties come to the agreement that will best serve not only their interests but those of the children as well. Collaborative team members consider the needs and interests of all members of the family, including of the children. Collaborative divorce offers many opportunities to be creative in resolving these issues.
Studies show that children whose parents had high conflict divorces fare worse in the years after divorce than the children whose parents managed to resolve their divorce issues with a minimum of conflict, and shield the children from exposure to conflict. I strive in all of my cases to minimize the conflict over children, and if there is conflict, to discuss with my clients how best to protect the children from it.