Custody and the Best Interests of the Child

Custody in family law

I am often consulted by parents who have separated and are in conflict about child custody.  In most cases parents don’t understand what custody actually means – they believe it has to do with where the child will live or who should pay child support.  Custody actually represents decision making authority.  One of the concerns that separated parents have in most cases is that the custodial parent will use their authority to the detriment of the non-custodial parent.  Conflict in marriages often has a “power/control” element to it – one parent has an issue, and they attempt to solve their issue by controlling the other.  At it’s heart it’s really a communication issue – the parents need to be able to communicate more effectively and solve problems mutually.

Custodial decisions are characterized as major decisions with respect the child.  They surround the “incidents of custody” – medical, education, religion.  The day-to-day decisions surrounding children are made by the parent who they are with at the time.  My advice to parents fighting over custody is to look at the particular incidents of custody and examine where the actual differences lie.  Most parents will have already made the major decisions – the child is baptized, or not, they are already attending a particular school, and so on.  If you build those decisions right into the agreement (ie. the child’s religion shall remain x unless both parties agree otherwise) you can resolve the conflict without spending a lot of money on lawyers.

Another alternative that I have had some success with is to divide up the incidents of custody based on the parents skill sets.  If one parent has traditionally worked with the child’s school administrators and teachers and has done well in that role, then assign that particular incident of custody to them.  In all of the cases – custody often deals with major decisions – and those decisions remain reviewable by a judge if a parent strongly disagrees.

Custody battles are expensive – expert evidence is required ($6,000 to $10,000), interim motions ($5,000 per), examinations for discovery ($5,000 per) – they all add up and the money spent would often fund a post-secondary education.  You have to weigh the cost-benefit of fighting over an uncertain decision that may not have any impact on the child’s best interests.

If you have a custody issue that is hampering your family’s ability to function happily and is creating conflict, please feel free to contact me.  I offer free 30 minute consultations for new clients and I may be able to help you work through your family law issues.  Children have significantly higher long term outcomes when their parents are able to manage their relationships effectively.  If you need help reaching that goal please contact my office and schedule a consultation.