Frustrated by denial? Any parent who has
gone through a divorce, separation or break-up knows full well that the issue
child custody - of when they can spend time with their children - is not always
resolved with the issuance of a Court Order or entering into an Agreement with
the other parent. All too often, a parent's time with the children is frustrated
by the other parent, who, for whatever reason, fails and/or refuses to produce
the children for custodial time. This behavior can have devastating effects on
both the parent who has been denied access and his or her children.
What to expect from the
courts..
By the time
access is denied a parent, he or she may have little recourse. Even if the
Courts are open at the time the other parent fails to produce the children,
there is no guarantee that the necessary paperwork to file a Violation can be
prepared immediately or that a Judge will be available to address the matter
promptly. Anyone who has been through the Court system is aware that, from the
time an application is filed, it may take weeks before the parties are actually
scheduled to appear in Court to have the child custody issue resolved. During
that time period, the other parent may continue to withhold custodial access.
This is not to say that
there are not steps which you can take to protect yourself. Sound advice about
legal matters when it comes to child custody plays a major role. As a general
rule, avoid informal agreements with the other parent about your custodial time.
You must insist that the terms of your agreement be formalized either in a
written Court Order or an enforceable written Separation and Settlement
Agreement. Without such formality, a Court will not be able to hold the other
parent in violation of your in formal agreement.
What factors do courts take into account when deciding who gets custody of the
children?
A court gives the "best interests of the child"
the highest priority when deciding custody issues. What the best interests of a
child are in a given situation depends upon many factors, including:
the
child's age, gender, mental and physical health
the
mental and physical health of the parents
the
lifestyle and other social factors of the parents, including whether the child
is exposed to second-hand smoke and whether there is any history of child
abuse
the
love and emotional ties between the parent and the child, as well as the
parent's ability to give the child guidance
the
parent's ability to provide the child with food, shelter, clothing and medical
care
the
child's established living pattern (school, home, community, religious
institution)
the
quality of the schools attended by the children
the
child's preference, if the child is above a certain age (usually about 12),
and
the
ability and willingness of the parent to foster healthy communication and
contact between the child and the other parent.
Assuming that none of these factors clearly favors
one parent over the other, most courts tend to focus on which parent is likely
to provide the children a stable environment. With younger children, this may
mean awarding custody to the parent who has been the child's primary caregiver.
With older children, this may mean giving custody to the parent who is best able
to foster continuity in education, neighborhood life, religious institutions and
peer relationships.
Are mothers more likely to be awarded custody over fathers?
In the past, most states provided that custody of
children of "tender years" (about five and under) had to be awarded to the
mother when parents divorced. This rule has been rejected in most states, or
relegated to the role of tie-breaker if two fit parents request custody of their
pre-school children. No state requires that a child be awarded to the mother
without regard to the fitness of both parents. Most states require their courts
to determine custody on the basis of what's in the children's best interests
without regard to the sex of the parent.
As it turns out, most divorcing parents agree that
the mother will have custody after a separation or divorce and that the father
will exercise reasonable visitation. This sometimes happens because fathers
presume that mothers will be awarded custody or because the mother is more
tenacious in seeking custody. In still other situations, the parents agree that
the mother has more time, a greater inclination or a better understanding of the
children's daily needs.
