Custody – What Are Your Child’s Best Interests?

Deciding which parent will have custody of the children is probably the most painful and difficult part of the divorce process.  It is painful and difficult for the children as well.  The psychological effects of divorce on children range from anger to extreme depression.  These effects are made more intense when the children are forced to endure a custody battle.  Children who endure a custody battle may also experience other psychological problems that include denial, guilt, low self-esteem, depression, anger, and panic.  They may also suffer from physical problems and display destructive or even criminal behavior.

So, painful or not, the best way to resolve custody issues in a divorce is by an agreement between the parents.  After all, there isn’t anyone who knows your children as well as you and your ex.  More importantly, when your children know that you’ve been able to agree on what is best for them, it helps ease their trauma and heartache.

If you simply cannot come to an agreement about child custody and visitation after divorce, then you must turn to the court to make a decision. It is essential to remember that family courts in every state, including Massachusetts, decide custody issues based upon what is in the best interests of the children.

The welfare of the children is the only consideration when the judge makes a decision about custody and visitation in Massachusetts.  The wishes and convenience of the parents have no effect on the judge’s decision. Many parents forget when they bring a custody battle to court that they must show themselves as the parent who can best provide for the children.

What does the “best interests of the children” mean?

First, the court gives equal consideration to each parent’s ability to provide the best environment for the children.  In other words, how each parent can meet the child’s physical, educational, educational, spiritual, emotional, and financial needs. The court no longer makes the presumption that young children are better off in their mother’s care.  Since many fathers are now actively involved in their children’s upbringing, the court will evaluate the role that each parent has had in the children’s lives.

Some of the factors that are considered are:

The Home – Can you provide a safe and adequate shelter for your children?  What about the other parent?  Be prepared to show photos of your home, your children’s sleeping and play spaces, and the neighborhood.

Status Quo – Keeping the children’s lives consistent and balanced is a critical consideration for the court.  It is unlikely that the court will order a change of residence during the school year if it means the children will have to change schools.  If you strongly believe that such a move is truly best for your children be prepared to present strong evidence to support your claim.

Child’s Preference – As children mature the court will be more influenced by their preferences.  There is no “magic age” when the child’s preference controls but the judge will listen if a child has a strong preference even if the child is relatively young.

Parent’s Availability – Full time parenting has an advantage over working full time. However, not many capable parents have the luxury of not having to work for a living, and the court will not deter from giving you custody only because you must work in order to support yourself and your child.

Second, the court will consider whether any member of the family abuses alcohol or drugs.

Third, whether either party has deserted the children, or has been disinterested in the children’s upbringing prior to the divorce is a factor.

Fourth, the judge will want to know whether the parties have been able to cooperate on matters concerning the children, or whether they simply cannot work together on anything.

The court may also order the appointment of a Guardian ad Litem, or GAL.  The GAL will conduct an extensive study of the children and the parents.  The study may include home studies of each parent’s home, review of school and medical records, interviews with teachers, counselors, and health care providers, and psychological testing of both parents and the children. Whether you are preparing to work with your attorney or you are preparing for a GAL investigation you should be sure to have the following documents:

Complete medical records;

Psychological records;

School records;

Religious records;

Records of school activities and extra-curricular activities

 

You should also provide the GAL with a complete listing of how your child spends free time including a list of friends names and addresses (including the parents’ names,) favorite television shows (and how much time your child spends watching television,) favorite foods, sleeping schedule, etc.

All of the processes and procedures that the court uses to make a decision regarding custody and visitation cause stress and anxiety for the parents and the children.  The far better approach is to work with your former spouse and your attorneys to come to a tentative agreement during the mandatory 4-way meeting.

The more you work with your ex-spouse to craft an agreement that meets your children’s needs, the faster and more completely they will recover from the ordeal of divorce.