THE CUSTODY FIGHT AND HOW TO AVOID IT

By Richard A. Marcus, Esq.

When clients come into my office for a consultation and children are involved, the issue of custody can be very high on the list. When it is, the parents have been unable to figure out a custody schedule that works for both of them. When it is not high on the list, the parents have already made arrangements that have withstood the test of time. Those parents are to be commended

In order to try to avoid a custody fight, it is important for the parties to understand the considerations of the courts in fashioning custody awards. The child’s best interest is the paramount consideration for any custody award. In order to fashion custody awards consistent with a child’s best interest, courts must consider, and effectuate, two critical public policies.

The court's "primary concern" is to assure the child's health, safety and welfare. The second policy is "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” The two policies are on equal footing if there is no threat of child endangerment. But where the policies conflict (for example is a domestic violence case) a custody or visitation order "shall be made in a manner" that ensures the child's health, safety and welfare and the safety of all family members.

If parents really understood these two policies and were objective about their application, a great number of custody battles could be avoided all together. In the majority of cases, if parents are honest with themselves, they will see that there is no danger to the child’s health safety or welfare. In these cases, custody awards should be joint and the parties should work together towards obtaining a schedule that is somewhat flexible and works for both of them. There will be times when each parent will need to vary the custody schedule somewhat and if each agrees to work with the other, both parents will be better off in the long run. If they cannot agree, the Court will ultimately resolve the dispute. But no one knows your children as well as you and the other parent. So why let a stranger make the ultimate decision?

If your case is not one which involves child neglect or substance abuse and both parents truly understand the two policies behind custody awards and try to be reasonable, custody fights can be avoided.

For all of your family law needs, contact the Law Offices of Richard A. Marcus (661) 257-8877.