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Advice on Custody

Best Advice on Custody for Divorcing Moms

Determining child custody can be the most challenging aspect of the divorce process. It’s important to know the facts in order to take the necessary steps to achieve what’s best for you and your children. Speak with your attorney about your options and how best to position yourself during this challenging time. Gathering key legal advice about custody can help you prepare for the challenges ahead.

Courts typically want children to benefit from time with both parents, so prepare yourself to hear the truth about the reality of your goals and expectations. The more information you have, the easier it will be to plan for you and your children’s emotional well-being.

Custody 101

First, it’s important and helpful to understand the legal terms with respect to custody. For the purpose of this article, I will discuss terms and custody in New York State (but know, divorce laws vary from state to state; which is why it’s important to discuss your situation with a lawyer practicing in your state.)

In New York State, child custody contains two parts: legal custody and residential (physical) custody.

  • Legal custody is the right and responsibility to make decisions about major issues affecting the child including education, medical and healthcare, therapeutic issues, and religion. In some cases, major decisions may also include decisions regarding child care, extracurricular activities, and camp.
  • Residential custody and/or physical custody pertains to where the child will physically live, and the access schedule for the non-custodial parent.

Sole Custody vs. Joint Custody

There are two types of legal custody in New York State: sole custody or joint legal custody.

  • Sole custody: One parent will make major life decisions. Sometimes the court will require a consultation. Other times, the parent who has sole legal custody must inform the other parent about the decision but the court may not require them to consult with the other parent.
  • Joint custody: Both parents contribute to major life decisions and jointly make such decisions; the parent with whom the child is residing is generally responsible for day-to-day decisions. At times, you may also have a hybrid model-joint legal custody with one parent having final decision making if the parents cannot jointly agree upon a major decision.  Another common term is “zones of decision making,” whereby one parent makes decisions about medical issues and another parent may make decisions about education. Essentially, the parents are dividing up the decision-making.

In determining legal custody in a divorce case, the Court will base their decision on the best interests of the child. Some issues that may define parental custody include your children’s special needs, learning differences, where they attend school, their wishes (in the case of older children), future goals, mental health issues (for parents as well as children), parental use of alcohol/drugs, and any domestic violence issues.

The secret key to gaining primary custody

But while all of these issues are important, the Court’s most important factor in determining custody might surprise you. That factor is which parent is most likely to foster a continuing relationship between the children and the other parent.

In fact, if I could give my clients a mantra as advice regarding custody it would be “fostering, fostering, fostering.” If you want to be the primary custodian, you must put aside all efforts to undermine your spouse. You must also demonstrate to the Court that you are most likely to ensure that both parents remain in your children’s life.

This might seem counterintuitive given that all of the other factors involve establishing that you are the “superior” choice, but it’s true. Children need the continuing presence of both parents in their lives, and Courts are highly sensitive to which parent is most likely to make sure that happens.

Managing expectations

When you meet with your attorney, be prepared to discuss both parents’ relationships and your varying roles with the children. Also be ready to discuss each parent’s relationships with the professionals (pediatricians, therapists, tutors, etc.) treating your children and appointment schedules for these meetings. The best advice for custody decisions is to be honest and informed.

It is not uncommon for parents and their children to have therapists. Many parents pursuing divorce may seek therapy for themselves or their children to help inform the children about divorce, aid with coparenting, and gain support while going through a difficult time period. If there are mental health issues, my best advice during custody disputes is to raise these issues with your attorney. You may also discuss reports and evaluations prepared by professionals at your children’s school, or outside professionals such as psychologists who are treating your children. You should be able to discuss any special needs and learning differences that impact your children.

What about domestic abuse?

Courts are also concerned about domestic violence, particularly when it occurs in the presence of children in the household. Plainly, it is not healthy for children to witness domestic violence against their parent.

Clients sometimes underplay the existence of domestic abuse even after they initiate divorce proceedings, but you need to be honest with your attorney as it may impact custody issues.

Let’s back up a moment and state very clearly at the outset what abuse is. At the most basic level, domestic abuse—also known as “intimate partner violence”—is about the desire of one partner to establish and maintain power and control over another.

Abuse can be psychological, emotional, verbal, physical, sexual, financial—even technological (using tracking devices or manipulating smart home technology to undermine a victim’s sanity). Abusers mix and match tactics from the list above to maintain control over their partners by forcing physical, emotional, and financial dependency and producing a continual fear that prevents their partners from challenging or leaving them.

I encounter abused spouses when they have finally mustered the courage to leave, more often than not because the abuse is so overwhelming that they can’t take it anymore. Before that, they frequently live in terrifying isolation, compounded by despair over being believed, since there are commonly no marks and therefore no evidence. Most significantly, they worry that if they aren’t believed and they end up in court, their children could face significant time alone with the abuser.

How to Get Help

Eventually, my clients will customarily get the orders of protection they need to protect themselves and their children from the abusive spouse. However, they are almost always confronted with questions about why they didn’t go to Court earlier, or why they didn’t report it to the police. They may be questioned about why there are no prior orders of protection to show the Judge, no hospital records, or no records of the abuse at all. When the judge asks me these questions, I have to explain: “Because they were terrified for themselves and their children and, most importantly, too ashamed to speak about the abuse.”

It is important to be honest with your attorney from the outset to get the help you need.

If you are fearful for your or your children’s safety, please visit The Hotline 1−800−799−SAFE(7233) or TTY 1−800−787−3224 or (206) 518-9361 (Video Phone Only for Deaf Callers) or Safe Horizon.

If possible, resolve your divorce without going to Court

With the exception of abuse cases, remember that the best agreements are those you and your spouse reach yourselves (in concert with your attorneys). Going to Court is always a risk as you are handing decisions about your life and your children’s lives over to one individual (the Judge) who doesn’t know you and/or your spouse. Nevertheless, if you are unable to reach an agreement through negotiations, it may be necessary to involve the Court.

 

Notes

Lisa Zeiderman, a managing partner at Miller Zeiderman LLP, a Founding Member of the American Academy of Certified Financial Litigation, a Divorce Financial Analyst, practices in all areas of matrimonial and family law including but not limited to matters involving custody, an equitable distribution of assets, child support and the negotiation and drafting of prenuptial and postnuptial agreements. Once divorced, Lisa is a mom and is remarried. She strategically and creatively crafts each case from the time of the first consultation to its resolution, in order to achieve the client’s ultimate goals.

 

Since 2012, SAS for Women supports women through the unexpected challenges they face while considering a divorce and navigating the divorce experience. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.

Support kids through divorce

7 Ways to Lovingly Support Your Kids Through Divorce

Whether you’re contemplating, planning, or coparenting after divorce, if you’re a parent it’s vitally important that your children are your top priority. Before making any decisions regarding divorce issues, put yourself in their shoes in order to best support your kids. Think about the consequences for them. See the outcome through the eyes of your five, ten, or fifteen-year-old. Ask yourself, what will they say about this when they are grown adults? Will they thank me for the way I handled the divorce, or be angry and resentful about my attitude and behavior?

The choices you make will affect your children for years and, yes, decades to come. For their sake, try to take the high road and be the role model they will come to respect and later want to emulate.

Here are some helpful tips for mindfully supporting the children you love before, during, and long after your divorce.

Before Divorce: Avoid Showing Conflict Around the Kids!

  1. Studies show time and again that conflict and tension around children creates the most difficulties for them related to divorce. It’s not the divorce itself! Parents can ease the process for their kids by eliminating battles, disrespectful behavior, and emotional outburst anywhere near the kids. That means no fighting on the phone, in another room, during pick-ups and drop-offs, or when talking with friends within earshot of your child.
  2. When you belittle, put down, or in any way disrespect your child’s other parent, regardless of how justified it may feel, it hurts your children in deep and long-lasting ways.

    Kids innately love and feel connected to both their parents. When you insult their other parent, it creates confusion, guilt, sadness, anger, insecurity, and low self-esteem.

    Instead, support your kids by reminding them that you will always be their parents and will always love them. Reassure them that no one will replace their parents either. “We will both always love you and be there for you, no matter where we live or how things should change.” Then make it your business to do the right thing on their behalf.

  3. Don’t wait for emotional or behavioral problems to appear. It is often wise to talk to a coparenting coach or family therapist in advance about issues worth your attention when assisting your children through divorce. Or schedule a few sessions with your children so they can express their anxiety, fear, anger, etc., and feel heard by an objective, third party. Ask friends, pediatricians, clergy, divorce coaches, or school professionals for referrals to professionals experienced with helping children through divorce.

During Divorce: Separate without Blaming or Shaming Your Kids

  1. It is common for children to blame themselves for the divorce no matter how bad their parents’ relationship has been. The younger the child, the more likely it is for this to occur. Sit down together and talk to your kids, emphasizing that they are in no way at fault. You can say something like:“Sadly, Mom and Dad* don’t agree about certain key issues and that has created conflict. Even when some of the things are about you, it does not mean you are to blame. You are an innocent child we both love. We disagree about some things—but not about our love for you. You are not to blame for our divorce.”
  2. Divorce always results in change within the family. Some of those changes can be challenging. Others will be beneficial and create a more peaceful environment for your children. It is important to address these issues. Remind the kids that the family is changing in some ways, but change is an inevitable part of life and not necessarily bad. Let your children see that everything around us keeps changing. “You grow bigger every year. Seasons change, clothing styles change, your school classes change. Sometimes it takes a while to get used to changes, like when you get a new teacher or try a new sport. In time you may come to like these new changes. Let’s give it a try.”

When is it Parental Estrangement and when is it Parental Alienation?

Read more and learn the difference.


As challenging as it may be, always keep from pointing fingers or blaming their other parent when talking to the kids about the divorce. It bears repeating: they love both parents and shouldn’t be judged nor shamed for this. Remember, it’s your divorce, not theirs!

After Divorce: Coparent with Mindful Love and Attention to Support Your Kids!

  1. Prioritize spending time and attention with your children. With all the stress in your life, it’s easy to overlook your kid’s need for stability and security. The best source for that support is you. It’s easy to take solace with friends or bury yourself in work, but keep in mind that your children need your support more than ever right now. Your love and attention are the most valuable resources you can share with them. Make sure you are generous with both!
  2. Let your kids still be kids. That means never burdening them with adult responsibilities beyond their age level. Your children should not become your messengers. Use texts or online scheduling tools for that! They are not your confidants either. Contact coparenting coaches and counselors for vital support you need. Never share adult content with them, as tempting as it may be, even with your teens. It halts their childhood innocence and throws them into your parental drama. Their brains aren’t developed enough to digest it. And they certainly can’t fix your damaged relationship. So, it’s not only foolish, it’s selfish.

Remember, divorce imposes changes within the family that your children never asked for. With these suggestions in mind, support your kids in ways that deepen your relationship at a time when they need it most. They’ll thank you when they are grown!

Notes

Rosalind Sedacca, CDC is the founder of the Child-Centered Divorce Network and a Divorce & Co-Parenting Coach. She’s the author of How Do I Tell the Kids About The Divorce? A Create-a-Storybook Guide To Preparing Your Children – With Love! To get her coaching services, programs, e-courses, and other valuable resources along with her free ebook on co-parenting success strategies, visit her website here.

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists and support strategies for you, and your future. Join our tribe and stay connected.

*At SAS, we support same-sex marriage. For simplicity, we may refer to the spouse as “he” or “husband.”

Custody Battle - How to Avoid Custody Issues During a Divorce

What is a Custody Battle and How Do You Avoid One?

A custody battle occurs when divorcing or divorced parents disagree about who should retain legal or physical custody of their children. Unfortunately, this is a common cause of litigation in family court, second only to litigation over support payments.

Custody battles are costly, both emotionally and financially, and can wreak havoc in the lives of the children involved. It’s important to educate yourself about the common causes of custody battles, how to avoid one, how to defend your child’s best interests, and what to do if you must file one.

How is Child Custody Awarded?

Absent any evidence that a parent is unfit, family law judges in most states will apply some form of a “best interests of the child” analysis. They will also factor in the rights of each parent to maintain a relationship with their children.

In determining the best interests of a child, a judge will consider:

  • The child’s age (younger children need more hands-on care);
  • Any evidence of the parenting ability of each parent;
  • What parenting arrangement will maintain a consistent routine for the child;
  • How any proposed change will impact the child’s current routine or lifestyle;
  • The child’s wishes, if the child is mature enough;
  • What parenting arrangement best protects the child’s physical safety and emotional well-being.

Historically, family law judges automatically awarded custody to mothers, but this is not the case today. Unless there are compelling reasons not to, judges will award parents joint legal custody, and either joint physical custody or physical custody with one parent, the other to have liberal parenting time.

When one parent wants to change the custody arrangement for any reason, they may choose to go to court. If the other parent disagrees, this is what is called a “custody battle.”

What Happens in a Custody Battle?

In a custody battle, also called a “custody dispute,” one parent seeks to change the child custody arrangement by filing a motion in family court and seeking a court order. The reasons parents need to do this may vary and can be any of the following.

One parent is:

  • Unfit
  • Emotionally abusive or absent
  • Physically or sexually abusive
  • A drug or alcohol abuser
  • In a living environment that is unsafe for any reason
  • Suffering from mental health problems
  • Unable to financially support the children
  • Attempting to alienate the children from the other parent

With the help of a good divorce attorney, the plaintiff parent must prove that for whatever reason, the children’s well-being is endangered by the defendant parent. “Well-being” includes physical safety as well as emotional and educational nurturing. Defendant parents often bring a counter-suit alleging that the plaintiff parent is unfit.

It’s important to know that the plaintiff parent faces an uphill battle to persuade the court that the defendant parent should not have custody of the children, because the law favors joint custody and the rights of parents to have relationships with their children.

Custody battles can be drawn-out and expensive. Not only will you pay court fees and ongoing attorney fees, but you will probably pay fees to experts for their evaluation and testimony, and perhaps fees to investigators. Custody battles also take an emotional toll on the entire family, especially if the children themselves have to testify. Pitting children against their parents in court can cause life-long emotional damage.


Wondering how to coparent when you absolutely “hate” your Ex? You’ll want to read our post about coparenting with an ex you hate.


How Can I Avoid a Custody Battle?

A parent having sole or joint custody of their children can try to avoid a custody battle by allowing their coparent the custody or parenting time ordered and by doing their best to cooperate and collaborate with their coparent.

Unfortunately, disputes arise. Your coparent may disagree with your parenting style or decisions you make and may make an allegation of abuse or unfitness, even if untrue. In this case, you will not be able to avoid a custody battle.

Consult with an attorney if your coparent files a custody dispute. Although your coparent must satisfy a high burden of proof of parental unfitness, you will need to assert your rights immediately. In cases where abuse of any kind is alleged, your children can be taken from you before it is proven in order to protect the children from possible harm.

What to Do if Your Coparent Alleges You Are Abusing Drugs or Alcohol

If you have a history of drug or alcohol use, this does not automatically make you unfit to parent your children. You should gather evidence that you have sought treatment and have been successfully treated for drug or alcohol dependency. This evidence can include proof of attending rehabilitation and negative drug or alcohol tests. Agreeing to continued drug or alcohol testing will help you retain custody of your children.

What to Do if Your Coparent Alleges You Suffer From Mental Illness

If you have a history of mental illness, this does not necessarily mean you are unfit to parent your children. You should gather evidence that you have recovered or are being successfully treated. This evidence can include the testimony or affidavits of psychologists or psychiatrists or the testimony or affidavit of the doctor who prescribes your medication.


How do you feel anchored when you are thinking about divorce and also spinning with all the information and unanswered unknowns? Check out “Overthinking When to Leave Your Husband.”


I Want Sole Custody of My Children, What Can I Do?

If you feel that the best interests of your children dictate that you have sole custody, you must file a custody dispute. Be advised that this will be expensive and may take months if your coparent defends.

Gather evidence that shows your coparent is unfit. If the reasons your coparent is unfit include any form of abuse, such as emotional, physical, or sexual abuse of your children, contact your local police and file a report. This can expedite the removal of the children from the coparent’s care and keep them safe while the court decides whether or not to change the custody arrangement.

Although a custody battle can be expensive and ugly, sometimes you cannot avoid one. Put your feelings aside about your partner as a spouse and ask yourself, is s/he generally a good parent? If so, it’s time to come to terms with the fact that your children deserve equal time with him/her. On the other hand, do not hesitate to file a custody dispute if you suspect that your children are unsafe or unattended to while in the care of your coparent.

 

About the Author

Veronica Baxter is a blogger and legal assistant living and working in the great city of Philadelphia, USA. She frequently works with Lee Schwartz, a noted child custody lawyer in Philadelphia.

Whether you are navigating the experience of divorce, or that confusing place of recreating the life you deserve, one thing we see making a significant difference for women is the conscious choice to not do it alone. Since 2012, smart women around the world have chosen SAS for Women to partner them through the emotional, financial, and oft times complicated experience of divorce and reinvention. 

“A healthy divorce requires smart steps through and beyond the divorce document.” Learn what we mean and what it means for you in a FREE 15-minute consultation.