It doesn’t matter whose right. Whomever may be at fault, one thing is certain when families break up; it will get ugly. Emotions will run high. Poor decisions will be made. Add children to the equation, and you might think matters would improve. After all, no parent would happily see their child suffer. History, however, suggests otherwise. When a marriage is breaking down and divorce is imminent, parents often unknowingly, try to recruit children to fight their cause for them. Sometimes they are successful. The children may not know any better, or even be conscious of what’s happening. The children become pawns in the game of life and death that is taking place in the home.
A Court of Law, will eventually dictate the terms of access you have to your children, or lack thereof. The Court may award Custody to you. The Court may award Custody to the other parent, or the Court may fashion an joint custody resolution. Access time and primary residency of the children are also determined by a Court if the parents can’t agree. The status quo that you establish years before the case is filed may effect the final outcome.
But is this really fair? Should a child’s childhood be dictated by one parent or the other? Especially if both parents are fit, and no extraordinary circumstances exist? Is society at large committing a huge social crime in adopting this rather barbaric way of assigning the custody and upkeep of a child? And, what long-term effects is this having on children?
Whenever you may be faced with the prospect of a divorce and subsequent custody battle, the first thing of note is that the court’s approach to both these issues is different. Yes, a number of the problems that you may wish to raise in the custody battle may be similar to those you raised in the divorce. However, the court will approach the issues differently. The rationale for this approach is that whereas divorce is seen as a subjective issue, child custody is very much an objective issue in the eyes of the court, namely “what is in the best interests of the child?”.
In determining what is in the best interests of child with respect to an order of custody, the courts have come up with multiple factors to consider:
(1) the level of love, affection and emotional ties between the mother, father and child(ren) at the center of the dispute;
(2) the capacity and disposition of the parties involved in the custody hearing to provide the child with the needed love, affection and guidance, as well as the child’s continuing educational needs, religious needs and creed;
(3) the capacity and disposition of the parties to provide the child with needed food, clothing, medical care or other remedial care
(4) the period of time that the child has lived in a stable, safe, environment;
(5) the permanence of the family unit;
(6) the moral fitness of the parties;
(7) the mental and physical health of the parties;
(8) the home, school and community record of the child;
(9) the preference of the child, within reason and if the child is of an age to express a preference;
(10) whether or not the parents have come to some pre-arrangement or their willingness to co-operate with the raising of the child going forward;
(11) whether or not there is a record of domestic violence; and, if so, whether such was witnessed by the child; and
(12) any additional factors that the court may fee is of relevance.
The outcome of that multi point test will decide the fate of the child’s custody going forward. Looking at the test set out above by most courts you may well be left wondering whether or not this is a fair test and whether it reflects the true values of our society. After all, no parent is perfect. Moreover, issues such as whether or not one parent has sufficient funds to cater for a child’s needs can easily be overcome by an order of the court that the other parent pay alimony, with or without visitation rights. So, is it fair that because I, as the father of the child, work and earn an income should have to pay this money to the stay at home mother who has no income purely so that the child has funds in order to meet its needs even if I were not to be given visitation rights to the child. Unfortunately the attitude of the courts is that this is very fair, even if you may consider such behavior a moral crime.
Despite this, few alternative methods of establishing what is in the best interests of the child and awarding custody of the child based on this have been successful. Yes, there may have been one off cases that you could easily cite where success has prevailed, but as a general matter this is not the case. Consequently, for now, the test stays.
Do you think your case ends when a order of custody is issued by a Court. Sometimes it does. You and your child’s other parent reach an uneasy truce, and agree to move forward to raise the child you have in common together. Sometimes the case doesn’t end there. Post judgment litigation is common. Sometimes the parent that wins uses the Court order as a sword against the other parent. Sometimes the parent that lost takes desperate action. In either scenario the child loses.
Once custody has been awarded to one of the parents immediate issues arise which could, if not observed carefully, cause the child to behave in a dangerous manner.
One such issue that may arise following a custody battle and the settlement of a child with one parent is that the child is far more likely to develop an association with the parent they reside with while ostracizing the parent that is not the stay at home parent looking after their day to day needs, which is commonly known as the Parent Alienation Syndrome (PAS). PAS differs slightly from Parent Alienation (PA) in that PA is the alienation of the child from its custodian parent, rather than access (visitation) parent. Either way, both PAS and PA can cause deep emotional and moral issues in children of divorced parents which could lead them to behaviorial and social issues or other problems.
At Meth Law Offices we have extensive experience in highly contested, high conflict custody battles. Knowledge is power. Having an advocate for your parental rights gives you best chance for the Court to make findings pursuant to the test as outlines above, that are favorable. Get information at the earliest stages of your conflict, months or even years before papers are even filed. At Meth Law Offices we try to take child centric approach to custody litigation. Call me. I will answer your questions to the best of my ability. Knowledge is Power. Know your rights.