Last Updated on August 11, 2023 @ 8:30 am
Fighting with your ex over bank accounts and assets is tough enough, but what do you do when it comes to the kids? If both parents want primary custody of the children and there seems to be no middle ground, you are forced to show the courts why you are the better parent. Does this mean you need to point out the weaknesses of your ex spouse? Not necessarily, as an approach such as that can be just as damaging in that the judge may perceive you in a negative light. The ideal strategy is one that shows the court you have the best interests of the child in mind, even if it does not mean you have full and sole custody of the children.
The Burden of Proof
If you are seeking sole custody, (or as commonly referred to in many states now, “Primary Allocation of Parental Responsibility”), you are telling the court that the children are better off in your custody alone and with you being the primary decision maker for significant child-rearing decisions like medical, school, or religion. This is a large burden to prove to the court and one in which you need to be very careful about presenting. Unless there are extenuating circumstances, such as a situation where there is a legitimate danger to the child, the courts will not want to exclude either parent from the life of the child. If, up until this point, both parents have been active in the life of the children, why is one parent now claiming he or she should be the sole caretaker of the children?
When trying to prove to the court that you are in fact the better parent, some parents will take the route of trying to discredit the other parent. While some of these claims may be legitimate, bringing up issues that simply bother you will not be taken seriously by the court. This will come off as an attack on the other parent and actually makes you look less desirable to the judge rather than proving how bad of a parent your ex-spouse is. The line of presenting yourself as the better parent vs attacking your ex can be very fine. It likely involves mistakes (significant) that your ex may have made, but it should primarily focus on the positives in your life: stability of your home, school rankings near you, hours that you work, past and current involvement in your child’s life, who makes and attends medical appointments, etc. The list is endless, but should be the focus of your case. This all comes down to how well you present yourself to the court.
Presenting Yourself at the Better Parent
Instead of focusing on your ex, keep the focus of your argument on yourself. This does NOT mean ignoring significant negatives of your ex – maybe he or she recently got a DUI or has a history of some type of abuse. What this means is focusing on the main elements that make you shine to the judge.
There are two primary concerns the court will look at when deciding which parent should get custody of the kids:
- Physical well-being
- Psychological well-being
Physical Well-Being of the Child or Children
This first area covers a lot of ground, not just the “physical” condition of the child. For instance, during a divorce, the court will not want to disrupt the regular routine of the child or children as little as possible. If, for example, they are involved in after school activities, such as sports or a play, will being in your custody and care allow the normal routine to continue?
This area also addresses things such as normal sleeping schedules, eating habits, and schooling. Ask yourself this question, “If I win custody, will my child’s everyday life dramatically change?” If the answer is no, you are already on the path to proving you are the better parent in terms of the overall well-being of the child or children. Now all you have to do is explain each point in detail to the judge and convince him or her of these points.
Now, don’t think that a substantial change in a child’s routine is necessarily bad if that change is significantly better. If the change is merely spending the majority of the time at your house versus the other parents house but nothing more, that is the type of shift that uprooting a child may not be best according to the judge. But if the change is more like this: now the child has his/her own bedroom; a parent is home when the child is out of school; now the child has a yard to play in; now the child is able to attend activities because the majority time parent has the ability to attend sporting events, etc., your chances of showing why this large shift should take place and will be positive make a lot of sense. Judges don’t want to shake up a child’s life unless there is a really good reason to do so – be that reason and get involved.
Psychological Well-Being of the Child or Children
It may seem counter-intuitive, but actually encouraging a relationship with the other parent is much better than telling the court that you want the other parent completely removed. This does not mean you want to give up custody or parenting time, but that you are more than willing to work out some type of visitation arrangement that will allow that to happen if you are granted full custody / primary parenting time.
Again, unless there is a legitimate reason why your ex should be prevented from seeing the child or children, the courts will want that parent to be involved. It is extremely important for you to be able to accept this if your ultimate goal is to win sole custody of the children.
All states decide who should make decisions for the child and who should be the parent with the majority of parenting time with the child using what is known as the “best interests of the child” standard. This varies from state to state, but it has many common aspects to it, one of which is “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child“. (This is taken directly from Illinois statute, but most states have similar wording).
How Does the Court Decide Who is the Better Parent?
In addition to the physical and psychological well-being of the children, the courts will also take a very hard look at the parents, obviously. There are a few factors that will help the court decide which parent, if not both, should have custody of the children during divorce:
- Can both parents reasonably participate in the lives of the children post-divorce? At the very least, the courts will usually grant visitation rights / parenting time to a parent even if he or she is not granted joint custody (shared allocation of parental responsibility). The main reason being that, the court does not simply want to pull one parent out of the life of the child unless he or she presents a danger to the child.
- Does my parenting style make me the better choice? In all honestly, no, it does not. Having a different parenting style and exploiting this to try to gain custody will have little to no effect on the overall outcome of the case. In fact, by challenging your ex-spouse’s parenting style, you may come off in negative light to the judge. Can you mention it? Sure, but it should not be the sole focus of your case. As long as the other parent is raising the child properly, their “style” is not really a factor. One significant difference here is whether corporal punishment is used. Things have changed since the 1950’s – and most judges will outright order parents to avoid corporal punishment.
- Do you have the child’s best interests in mind? You may think it best to prevent your ex from seeing the children, but is that in yours or their best interest? Are you doing this simply because you do not want to “deal” with your ex? Preventing him or her from being involved is hardly in the best interests of the child or children. Are you not paying court mandated child support because you do not like how your ex is using the money (don’t ever do this)? Are you blocking phone calls and preventing your ex from being able to speak with the children other than the mandated visitation times? Any of these behaviors will hurt your chances of winning sole custody or parenting time and visitation rights with your children. Avoid giving any ammo to your ex to use against you – no matter how small it may seem!
What if I Don’t Win Sole Custody?
In many cases, the courts simply are unable to prove that one parent is in fact the better parent (or, more likely, that one parent is significantly better than the other). When this happens, joint custody or a shared allocation of parental responsibilities is awarded and the children will spend time at both homes – keep in mind that the amount of parenting time each parent has might be quite different – a judge might order the parents to jointly make all decisions for their child (school, medical, etc.), but give one parent the majority of parenting time. For the parents, it is best to try to work out some type of agreement so the scheduled days work well for all involved. It will also show the court that both of you do indeed have the best interests of the children in mind as you working together to create a workable agreement that benefits everyone.
This is also not necessarily a bad thing. Joint custody (shared allocation of parental responsibility) means both parents retain a parental role in the upbringing of the child. Both parents are expected to be involved in decisions such as religion, medical care, and schooling. It is also expected the parents will agree on things such as discipline so there is consistency in place regardless of which home the children are in at the time. If one parent does not live up to his or her end of the agreement, you may consider going back to court for a child custody modification agreement, although most courts will require you to first attempt to seek mediation to solve the problem. When a problem can’t be solved through use of a mediator, or if the problem is urgent, the courts will need to be involved to make the final decision.
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