What do I Need to Know about Child Custody?

Before you start thinking that your divorce is going to need a Court adjudicated (decided by the Judge) child custody schedule, know this first: you will only need one if you and your spouse cannot come to an agreement about your child custody situation. If the parents can construct an agreement that they’re both happy with, then there is no need for court involvement. If you and your spouse cannot agree, then here is what you can expect from the child custody process.

First, your attorney has to file a motion–either included in the divorce petition or separately–to start the process. The filing parent must notify the other parent at the time of the filing, and then the other parent gets a finite time to respond with their own filing. Eventually, the parents will have their day in court to discuss the issues, but until this time, the child is not left in limbo. One or both parents will ask the Court to enter Temporary Orders providing for the temporary conservatorship, possession, support, and medical costs of the child.

It is rare in a true “custody battle” that the parents can agree on Temporary Orders, as neither parent wants to give the other parent a perceived or real advantage by having primary possession of the child while the custody case is being litigated, however, sometimes it is possible. Often, in these cases, when there is an agreement, the parents reach it by agreeing to a 50/50 plan so that neither parent has more time with the child than the other. Absent agreement, the parties can present their proposed temporary plan to the Court in a temporary hearing. This can result in litigating the custody issue twice, both at temporary and final hearings, and can be extremely costly.

However, if a temporary agreement is reached, be advised that your temporary orders should be finely crafted and express exactly what you want, especially in terms of the visitation schedule. Temporary orders often become permanent, because the divorce and/or child custody process takes a long time. The minimum time is around 4-6 months, and if your case has a high amount of conflict, it could take up to two years. Long standing temporary orders have a way of becoming permanent because, after years of following the schedule, the Courts could take an “if it ain’t broke, don’t fix it” approach and adopt a final order that closely resembles what the parents have been doing.

For lots of reasons, Courts prefer that child custody issues be resolved by agreement, often in mediation, which brings in an unbiased third party into the mix to help both sides reach an agreement. Mediation helps reduce the amount of conflict between parents over children, thereby reducing stress on the children during this emotional process. In cases where it’s appropriate, the Collaborative Law process may be a better alternative to traditional mediation. If negotiations break down in mediation, then the issues will go before the court in trial. If this happens, then your case will definitely fall into the lengthy category.

The biggest lesson and key in child custody is to do everything you can to agree with the other parent on at least part of the child custody issues. It’s better for the both of you, for the child (most important), for your time, and your overall costs.

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