Last Updated: November 23, 2022
A child custody battle is not a pleasant situation for anyone involved. No parent thinks fighting for child custody will be easy, but it might be necessary. Parents are already emotionally and financially strained if during a divorce and children are facing a future of living in a broken family. If the adults do not agree on custody arrangements for their children, a nasty fight can develop. This takes the issue out of the hands of the parents and their attorney’s (or even a mediator) and puts it into the hands of a Judge. A child custody attorney that can handle these crazy situations is necessary (getting a free consultation from an expert is typical).
Fighting for Child Custody: Decisions
A decision needs to be made whether fighting for child custody make sense for all involved. In some instances, the parents can work out a mutual agreement that is close to what each parent wants (but maybe not perfect). Both parties compromise, and neither gets 100% of their requests. Child custody attorneys can negotiate this agreement, or the parents might sit down with a mediator and come up with a parenting plan that the court can enter. Sometimes the parents wishes (or other circumstances involving the kids) are just too far apart and this won’t work. This is when a tough decision needs to be made.
Contested Child Custody Cases
If a parent decides fighting for child custody is the only way to get what he or she thinks is best, a contested child custody case will start. This is normally not going to be something that is over with in a month or two and likely involves additional people to help the judge. Contested child custody cases might require the use of a 3rd party, like a child representative or guardian ad litem to be appointed by the judge.
Child Representative / Guardian ad Litem
A child representative (guardian ad litem) is an attorney that represents the minor children. A child representative’s investigation will likely involve both parents’ homes, the children, significant others, family members, and possibly doctors and therapists. From this investigation, they will begin making recommendations to the judge to determine how the custody case should proceed. If the parent that is fighting for child custody thinks that more needs to be done, this investigation could go on for a long time.
A child representative’s job is to make a recommendation to the judge as to what he/she believes is in the best interests of the child involved. The wishes of either parent do not matter, only what is best for the kids. Keep in mind that when an unbiased child representative makes a recommendation to the judge, the judge almost always goes along with it. Any parent fighting for child custody needs to make sure they get on the child representative’s good side and stay there.
How is Child Custody Determined?
Eventually, when parents are fighting for child custody, a decision will need to be made by the court. The decision made by a court is based on a standard known as “the best interest of the child”. In most cases, one parent is granted primary physical custody but shares legal custody with the other parent. Legal custody is the right to make decisions about the health care, religion, education, and other important aspects of the child rearing process. With a joint custody arrangement, children normally spend almost an equal amount of time with both parents.
In some cases, when one parent is fighting for child custody, a trial might take place. This will involve the testimony of both parents and possibly other people like child representatives, therapist, or even friends and family. After what might be multiple days of testimony, a judge will issue an order for custody, visitation, and decision making (also called the allocation of parental responsibility). This order will take place in the form of a Custody Judgment, Parenting Plan, or Allocation Judgment, depending on what state a person resides.
Factors Used by the Court
The court reviews several factors when considering who should be granted primary custody of a child. Aside from the primary consideration, the best interests of the child, the court may consider the gender, medical history, and age of the child, the physical and financial ability of the parent to provide living essentials, and the wishes of the parents. If the child is at least 12 years old, the court may request his or her choice in the matter. Fighting for child custody in court will require extensive information like this to be shared between attorneys and with the judge.
People Other Than Parents
While usually done by parents, fighting for child custody might take place by someone else, like a relative of the child. Parties other than parents of the child, such as aunts, uncles, or grandparents, may want to receive custody. This is commonly called third-party or non-parental custody. Each state has its own procedures for handling this situation and the process involves the court. If the parents are still alive and their whereabouts are known, they usually must be informed of this petition.
Any person thinking about fighting for child custody needs to be aware that it is not for the faint of heart. Child custody battles typically last a long time and if not handled properly from the beginning, don’t end well. Child custody lawyers and divorce attorneys that offer free consultations can help guide a person down the path to a successful outcome in court. Never give up hope and always remember to keep your child’s best interests a top priority in your life.