Divorce And The Contested Child Custody Case: What To Expect As A Parent


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There are few life events as stressful as divorce, but those involving children are among the most stressful. Even when both parties agree on what is best for the children, hashing out the details of child custody and support can be difficult and sometimes altogether impossible for the parents involved. When the divorcing parents don’t agree on custody and care of the children, the courts must become involved, and there is no greater need for an experienced attorney than at this time. Divorce attorneys with experience in child custody cases are your best tool for advocating for the best outcome for you and your children during a divorce.

Contested custody cases are the most intense and emotionally draining matters that divorce lawyers face with their clients. Recent national studies indicate that 90% of all child custody arrangements are arrived at via a settlement negotiated between the parties themselves. If, however, spouses are unable to reach their own stipulated agreement allocating custodial rights, then the court will step in and make that decision for them. The court will always base its decision on what it deems to be the best interests of the child. In order to reach a fair decision, the court will often appoint a social worker, psychologist, investigator or even a separate attorney to serve as guardian ad litem on behalf of the child. They will in turn examine the situation and report the findings back to the court. In many states, the court will also require the parents to attend some sort of conciliation or mediation session, and/or parenting education classes. Judges may also ask for a custody evaluation, including on-site visits to each parent’s home. Finally, a custody hearing will be held that could include reports from the various expert witnesses as well as testimony from each of the parents.  

In past years, custody generally would be awarded somewhat automatically to mothers. In fact, a legal principle called “the tender year’s doctrine” generally prevailed. This held that, especially for very young children, the primary bonding was presumed to be between young kids and their mothers. While it was recognized that this might be somewhat less true for older children, custody of young children was almost always granted to mothers.

In today’s courts, custody has by statute become gender neutral. This means that, at least theoretically, fathers now have every bit as much chance as mothers of getting primary custody of their children. In fact, the same national studies appear to indicate that in those 10% of cases where custody is actually disputed in court, fathers have an excellent chance of being awarded custody. This can also make for more contested custody cases since parents now technically start out dead even in a custody battle.

In a contested custody trial, the judge, social workers, and the child psychologists will al try to make a determination as to what will be in the best interest of the child, and one parent will be granted custody. The court will rarely force a joint physical custody result in a contested trial, although it will almost always approve that result when reached via a stipulated agreement between the parents. Often, both parties can make an excellent claim to being good parents, and it’s a very tough judgment call as to which one is truly the better parent. This makes the attorneys involved in contested custody cases some of the most important players, as they can have some control over the expert witnesses and the reports offered to the court, as well as offer their own experience with these types of cases.

There are many key factors that the courts will take into consideration when deciding a contested custody case. One of the most common is which parent is the current primary caretaker. This is often referred to as the status quo. If the children already spend 90% of their time with the mother, the court will often give her preference. The court will also consider the amount of time each parent has available to spend with the child, the lengths of time the child has previously spent with each parent, the extent of the child’s integration into a family or extended family unit, and each parent’s ability to meet the child’s health needs. All of these criteria will be included in the court’s decision.

Any negative influence on the child will be taken into consideration by the court when deciding on a contested custody dispute. Failure to pay child support, any history of interference with visitation, a history of one parent deliberately undermining the other and frequent changes of residence all reflect negatively in the eyes of the court and can limit a parent’s chances of being granted custody. If the divorce is the result of an extra-marital affair, that can also weigh in the decision.

Frankly, most judges don’t like being put in the position of having to rule on something as earthshattering as a custody determination based strictly on a courtroom hearing. Instead, at the initial stages of a contested custody case, the judge will strive put some kind of status quo arrangement in place that leaves each party “as is” as much as possible. Then the judge will defer the case until a custody evaluation has been conducted and the evaluators report back. The judge will rely heavily on the expert reports when making a determination. The parents usually realize this, and will often settle the case themselves based up on the recommendation of the custody evaluations. Conversely, the parties can choose to take the case all the way to trial. After all experts testify, the judge then rules, often following along the lines of the social worker’s initial custody evaluation.

Contested custody cases are complicated and ultimately decide the fate of an entire family. They are generally messy, emotionally draining, and tough on the kids involved. Having an attorney to guide you through, someone who has no emotional investments in the case, is essential for all parties involved.