What is Custody?
There are many types of child custody arrangements. The law uses certain terms to describe these arrangements.
Legal Custody
Sole Legal Custody is when a parent has the exclusive right to make decisions regarding the child’s general welfare. The other parent has no authority to make such decisions.
Joint Legal Custody is when parents make decisions jointly about the child’s general welfare. Joint legal custody may be granted where separated parents are in agreement on major issues affecting the life of their child and have little or no concern for the judgment of each other. Here, both parents legally have an equal say as to decisions affecting their child. It is assumed that they can reach decisions either by consensus or by one acquiescing to the judgment of the other.
Physical Custody
Sole Physical Custody is when one parent has the exclusive right to have the child live with him or her. Generally, the other parent, or “non-custodial parent” has visitation rights. However, there are cases where the court may prohibit all physical contact between the child and the non-custodial parent if there are issues of abuse or neglect.
Joint Physical Custody is granted to both parents when the child splits their time between the homes of each parent. The division of the time between parents is usually spelled-out in the Parenting Plan.
One of the latest trends in both Massachusetts and around the country is replacing custodial titles or labels and putting the focus on the Parenting Plan. Here, the primary focus is on discussing each parent’s rights and responsibilities and putting less focus on the label itself which creates the feeling of who became the winning or second place parent. Learn more by going to our quick link on custody/visitation overview.
What if the Children Refuse to Visit?
Do not assume that your children are always going to be willing to visit the other parent. Children may not want to leave their usual, or present environment. You cannot make your children want to visit, but the following steps might be taken to deal with the issue of children and their reluctance to visit:
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Try to find out if there is a specific problem. While age-appropriateness is certainly a component of this, it may be that the child is missing some part of the custodial home or, possibly, feeling the need to split loyalties between their parents.
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Are your children picking upon feelings of the custodial parent? They may feel any resentment the custodial parent has about the schedule, the transfer between parents and absorb those feelings as their own. Some parents suggest this is an issue of parental alienation.
Parental Alienation Syndrome
Parental alienation is any behavior by a child’s mother or father, whether conscious or unconscious, that could create alienation in the relationship between a child and the other parent. Alienation can be mild and temporary or extreme and ongoing. Most researchers believe that any alienation of a child against the other parent is harmful to both the child and to the target parent.
Alienating parents often use grandparents, aunts and uncles, or older brothers and sisters to alienate their children against the target parent. In some cases, therapists or other mental health professionals become unwitting allies in these alienation attempts by backing unfounded allegations of neglect, abuse or mental disease. Courts also often side with the alienating parent against the target parent in legal judgments because parental alienation is difficult to detect and prove.
Forms of parental alienation include brainwashing, character assassination, the false inducement of fear or even using children to commit aggression toward the other parent.
The ultimate goal of parental alienation is to force children to choose sides against the other parent. Children caught in the middle of such conflicts suffer severe losses of love, respect and peace during their formative years. They also often lose their alienated parent forever. These consequences and a host of others cause terrible traumas to children.
A major concern is how both a parent and child can corroborate “it happened” and “it’s true” and potentially mislead a judge or custody evaluator. Research has introduced new evidence and opened the eyes of experts to this matter and a new trend has emerged where parents who cause such toxic harm to their children will be viewed to be acting contrary to their children’s best interests and, possibly, have his or her custody or parenting rights restricted or affected, while the target parent may be viewed as the better parent.
How to Present Your Case for Custody
If you want sole custody of your children, you must demonstrate your ability to care for their needs. The documentation you present should describe the home and neighborhood, a statement of the kind of care provided for each child when you are not available, evidence of the availability of enrichment opportunities and outside activities to support each child’s abilities and a list of factors that favor you as the custodial parent – such as consistency, stability, background and longevity as the nurturing parent.
There are times you will also need to develop a factual list of documented reasons that the other parent should not be awarded custody. This may include issues relating to misconduct or abuses that affect the child’s well-being, demonstrated instability of the other parent, inadequate parenting habits, long work hours or frequent travel or even immoral conduct in front of or involving the children.
Documentation of your presentation is essential. Take pictures, copy documents and consider the use of effective witnesses. For example, consider a respected teacher, child psychologist or even a regular babysitter who has consistently observed family patterns and behaviors.
When custody is contested, how you present yourself to attorneys or judges will be crucial. What constitutes the child’s best interest is the basis for a judge’s ruling. The factors most often considered are:
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The child’s preferences (based on age appropriateness and motive)
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The current living situation and effects of the proposed change
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The nature of each parent’s relationship with each child
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The amount of care, affection and concern demonstrated by each parent
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The stability of each parent’s home
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The moral and ethical conduct of each parent, especially toward each other
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Each parent’s past history of compliance with agreements and court orders
In the event that you and your spouse are unable to come to an agreement, the court will appoint a guardian ad litem, usually an attorney, to protect the children’s rights and to voice their interests and concerns at formal hearings.
This guardian ad litem will interview the children, the parents and other potential custodians. These interviews often extend to teachers, neighbors, and other third parties who might be helpful.
If you are contemplating divorce or are currently involved in the process, undoubtedly you fear failure and the unknown. You are not alone. If you don’t know where to start or what to do, contact us. We defend our clients’ rights, and we can point you in the right direction, too.
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