Child Custody

The subject of child custody is a complicated and highly emotional issue involved in divorce. There are two major components involved in child custody: 1) the emotional side for the child and parents and 2) the legal and financial side for parents. "The Co-Parenting Survival Guide" by Elizabeth S. Thayer and Jeffrey Zimmerman, is an excellent resource for any parent going through a divorce with minor children.

An emotional time for a child		 Child Custody
Statistics show that fifty percent of children are children of divorce. When parents separate, a child often worries about who will take care of him/her;a child feels abandoned. A child needs constant reassurance that he/she will not be abandoned, and this reassurance needs to come from both parents. A few emotions a child of divorce may go through are: confusion, being afraid, insecurity, feel at fault for the split, sad, stressed, anger and even depression. Parents’ utmost concern and top priority during separation and ultimately divorce should be the well-being of their child.

How can parents make divorce easier on children?

Parents should try to cooperate with each other, rather than create more stress by conflicting with each other. The better the parents are at cooperating with various changes and tasks facing all family members, the more adjusted their child will be. The children who do well after divorce have parents who:
  1. Communicate effectively and collaborate as parents.
  2. Repeatedly tell their child that the divorce is not his/her fault.
  3. Explain to their child what will and will not be different - including where the child will live and when he/she will be with each parent - and be told in a positive and non-accusatory manner. This information is best told in small amounts and repeated over days and weeks, as the child may be in a state of emotional distress and feel over-stimulated.
  4. Give their child an opportunity to ask questions and express his/her feelings, if the child is old enough to do so.
  5. Provide stability in the home and pay attention to their child's emotional and physical needs with a positive, reassuring attitude.
  6. Listen to their child, be patient, acknowledge and understand his/her feelings and frustrations and let him/her know that you, as cohesive parents, will together make the best decisions for his/her well-being.
Limit a child's exposure to conflict between parents and maintain a good relationship with your child

The amount of conflict a child is exposed to during and right after divorce is critical to his/her adjustment. Both parents need to maintain a solid, positive relationship with their child and continue to be involved in every aspect of his/her life. Children learn how to be in relationships by their relationships with their parents. This positive relationship allows for balanced and realistic relationships in the future.
  1. Refrain from using negative statements toward the other parent is one way of keeping a positive relationship.
  2. Encourage a good relationship with the other parent to promote your own loving and healthy relationship with your child.
  3. It is easy to let anger and frustration be verbalized, but do not let negative thoughts or feelings be heard by your child. Say only nice things about the other parent or say nothing at all.
  4. Do not argue in front of your child.
  5. Communicate directly with the other parent and do not send messages back and forth with your child.
Parents should also try to keep changes to a minimum
  1. Keep your child in the same home and school, if possible, and maintain daily activities.
  2. Continue relationships with other family members and friends; keep routines the same, if possible.
  3. Try to use consistent discipline.
  4. Let your child be a child and don't be afraid to get outside help if a child is expressing his/her anger in a negative manner (i.e. "acting out").
Parents need to take care of themselves - if a parent is having a difficult time during the divorce and/or custody situation, seek professional help. In order to take care of a child, a parent needs to take care of him/herself. Don't give up on trying to be a good parent. Putting a child first in the parents' lives is the top priority when a child is involved in divorce.

Children's Rights

Children, whose divorcing parents are involved in a custody dispute, should have the right to:
  1. Not to be asked to choose one parent over the other
  2. Not to be told the awful details of the legal proceedings
  3. Not to be told negative things about the other parent
  4. Not to be quizzed about the other parents activities or the time the child spent with the other parent
  5. Not to be used relay messages between the parents
  6. Not to be asked to tell lies about the other parent
  7. Not to be a parent's legal confidant
  8. To express their feelings and to choose not to express certain feelings
  9. To be shielded from parental "warfare"
  10. Not to feel guilty for loving both parents
Who gets custody of children in a divorce situation?

Child custody is the right and duty of a parent to care for a child on a daily basis and to make major decisions on behalf of that child. Many factors and variables are involved in deciding custody.

Separation Agreement and Consent Order - The easiest, best and most common situation is for parents to settle out of Court, where parents agree voluntarily to their own arrangement (in the form of a separation agreement or Consent Order). The benefit of a separation agreement or Consent Order is that it gives parents the control over defining custody arrangements; if parents can't reach an agreement the decision of custody changes to a judge. If no separation agreement or Court Order exists, the verbal arrangements made between parents are subject to change at the whim of either parent. The separation agreement or Consent Order seals custodial and visitation rights and prohibits unexpected changes in custodial arrangements by either parent. The challenge in determining an out-of-court custodial settlement is developing an arrangement that gives each parent an opportunity to maintain a consistent relationship with an agreed-to method of raising the child.

Contested Court order - If parents are unable to agree, the decision of custody goes to Court. A judge's first and primary concern is the best interests and well-being of the child. According to NC Statute 50-13.2(a) "an order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child." The best interest of a child is the "polar star" by which courts should lead decisions about custody. A judge uses many varying factors in determining custody; he/she has great latitude in making a decision. The judge will consider parents' past and present behavior, which may be a prediction of future behavior. Basically, parents' lives are "fair game" where the judge is concerned. A parent must demonstrate and provide examples/testimony that his/her behavior and abilities will be the best for the child's overall welfare compared to the other parent. Besides parents' past and present conduct, the following are other factors a judge may use in making a custody decision, and the weight a judge may place on each of these factors is totally within the judge's prerogative:
  • Physical, mental, emotional, moral and religious factors
  • The child’s preference (if age appropriate)
  • Each parent’s caretaking ability, home environment and availability to the child
  • Each parent’s financial situation and ability
  • The child’s relationship with each parent and other siblings, if any
  • The cooperation of the parents in making sure relationships are maintained between the child and each parent
  • Abductions, violence in the home, child abuse and neglect, or drug/alcohol problems
  • A parent moves out of state
  • Other individual, case-specific, factors
Most custody disputes are between a child's biological parents. NC law states there is no preference for mother or father in a custody decision - "Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child." Many states, including North Carolina, have abolished the maternal preference, where a mother was presumed to be the most capable caregiver for a child during that child's earliest years.

In North Carolina, the law provides that the wishes of a child of "sufficient age to exercise discretion" are "entitled to considerable weight" in a custody case, but the child's wishes are not the deciding factor. The child's wishes may carry greater weight in the judge's decision if the child appears to be mature enough to understand the situation, but many child experts agree that no child should be asked to choose between parents. If a child is deemed competent to testify in the case, the preferred interview location is the judge's chambers rather than in open court.

Remember that until parents settle, or until a court issues a ruling on custody, each parent has equal rights to the physical possession of a child.

What decisions can a judge make?

A judge has the power to award custody to both parents. Custody encompasses physical and legal custody. One may have joint, primary, secondary or sole custody. Physical custody only looks at how many overnights a child has with each parent. Legal custody is used to define how major decisions shall be made for the minor child.

Joint physical custody: Joint physical custody occurs when both parents spend at least 123 overnights with the minor child(ren). Ruling joint custody with equal time given to each parent requires the greatest amount of cooperation between parents. Equal time is often seen as a week on week off schedule or a 2-2-5 schedule (parents assigned two weekdays each and then alternate weekends).

Joint legal custody: Joint legal custody refers to both parents sharing the rights and responsibilities in making decisions regarding the child, such as health, education and overall welfare.

Primary or Secondary physical custody: Sometimes a Judge will define custody as primary or secondary in lieu of calling it joint physical custody. A parent who has been assigned as having primary physical custody means that parent has more overnights than the other parent. Secondary physical custody means that one parent has less overnights than the other parent.

Sole physical and legal custody: In a sole custody arrangement, one parent, referred to as the custodial parent, cares for the child almost all the time and makes major decisions. The other parent is referred to as the noncustodial parent and has visitation rights. Conflict frequency may be less in this type of custodial situation because the parents will need less contact with each other regarding decision-making as well as changing the physical location of the child.

Once a custody agreement or order is made, can it be modified?

Yes. Parents are advised not to lock into a plan forever as a child's needs change as he/she grows, and the custody arrangement might need to be modified. Parents should plan to review the parenting and custody arrangements as the child grows and make appropriate changes. Custody is always modifiable by the courts in order to protect the best interests of the child. The parent asking for custody modification has the burden of proof, showing material and substantial circumstances affecting the well-being of the child.

Going through a divorce and deciding on child custody is an extremely emotional and difficult period of time. Parents need to keep their child's interests as the top priority during this difficult time and make the transition as easy as possible. In the best interest of the child, parents need to cooperate with each other and constantly reassure them that both parents love them and will always be involved in their lives.

Footnotes:
  "In The Best Interest Of The Child" by ADMIN on Nov. 4, 2008
"Child Custody: When Do Children Get to Decide?" by ADMIN on Nov. 4, 2008
"Child Custody: The Details" by ADMIN on Nov. 4, 2008
"Children and Divorce: The Emotional Issues" by ADMIN on Nov. 4, 2008