Child custody issues are perhaps the most difficult and heart-wrenching issues that we, as attorneys, and you, as our clients, ever face. Simply put, in a family law / matrimonial law case involving minor children, the Courts are concerned with one issue and one issue alone: “What are the best interests of the children and how will these interests best be served?”
The law provides many opportunities for parents to agree on questions concerning the future care and raising of their minor children and requires divorcing parents to mediate custody issues, first and foremost, as a means to involve the individuals who know their children best, in all decisions concerning their children’s’ futures. If you and your spouse can agree on child custody, either through mediation with a skilled child custody mediator, or through negotiations between your lawyers, you should be congratulated. If you cannot reach an acceptable resolution, the Courts may step in and make these crucial child-care decisions for you.
When a family court Judge intervenes in the custody process, the Judge takes a variety of factors into account in determining which parent is entitled to custody and under what circumstances. The law, and hence the Court, considers only the best interests of the child(ren), whether these interests are served by their mother, or their father, is solely up to the Court to decide, the notion that a “mother knows best” no longer applies in child custody determinations. These factors – all of which must be discussed with an attorney, before deciding to go to court – include:
- The age, health and special needs (if any) of each child;
- The lifestyles of each parent and the amount of available time and personal resources – meaning time and attention, and not always just money – available to dedicate to the welfare of each child;
- The functionality of the divorcing parents as a cohesive parenting unit (for example, does one parent insult, degrade or denigrate the other parent before the child(ren), or otherwise undermine the parental authority and effectiveness of the other parent);
- The history of one, or both, parents either to be actively engaged, or effectively disinterested, in the daily lives of the child(ren);
- The demonstrated willingness of one, or both, parents to allow visitation with the child(ren), and even before they, or the Courts, may determine custody;
- The tendency of one parent to disregard the rights of the other, to abduct, to secret or to hide the child(ren) from the other parent;
- The existence or evidence of alcohol or drug abuse by one, or both parents, and the mental and emotional stability of any parent who would assume custody of the child(ren);
- The housing, schooling and numerous other “environmental” considerations that the Court may deem relevant; and,
- The existence, to a lesser extent, of a large family network for support and assistance in the raising of the child(ren).
In most cases, a non-custodial parent, is allowed visitation with the child(ren); and in some cases, even grandparents and third parties (strangers to the biological family) may be awarded custody of the child(ren) if the circumstances warrant such arrangements.
At James Zisa Attorneys, we encourage our clients to work with their spouses, and focus efforts on resolving issues of custody as best as may be resolved. We pride ourselves in the extent to which we get to know our clients and, by extension, their children. Still, nothing we know, and nothing that we, or any other attorney ever may communicate to a Court, can substitute for the rational application of common sense decision making by two loving and concerned parents. Talk to us, let us help where we can, but don’t be surprised if – at least where issues of child custody are concerned – we press you temporarily to set aside the differences that separate you from your spouse and focus on your children. After all, you know them best, as well you should.
