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Probably the hardest part for many people getting a divorce is figuring out child custody. You’ll hear the phrase, “In the child’s best interests,” a lot but many parents still disagree and fight over custody while fully embracing what they think is in their child’s best interests. I know I went through this in my own divorce and custody hearings, and was shocked to learn a different phrase: “Being good enough.”
The courts will deem both parents "good enough" unless there is substantial proof to deter from that stance. There may be a lot of emotions involved, but you’ll be wise to learn that when it comes to custody, the courts stay as far away from emotion as possible. Keep in mind that if either parent is saying the other is unfit, you may need to prepare yourself to prove your case.
That scenario played out during Stephanie Borman's custody dispute. “I had to bring in character witnesses who would make the most impact on the judge, like my son’s principal,” the mother of two told Mom.com. Finding people who have seen your good and your ex's bad is important if it’s really a factor for custody.
Two types of child custody
Courts will break down custody into two segments: legal custody and physical custody. There is no set rule for how this ultimately plays out, but the courts generally assume 50-50 in both instances unless there is reason to alter it.
Legal custody is a parent's right to make decisions for their children. The legally responsible parent will determine the school choice, medical care, and even activities that a child is allowed to participate in, such as football. I share legal custody with my ex-husband who refused to allow our son to get a driver’s license. It is possible for one parent to have sole legal custody or to share it as I do with my ex.
Physical custody refers to where the child lives and how often he sees the other parent. Once again, courts favor 50-50 as long as both parents are “good enough” unless there is a reason to use a different breakdown. You won’t get full physical custody (meaning not even visitations) unless the other parent is a danger to their child. You may see one parent have primary physical custody with weekly visitations that might equal 80% of the time with mom and weekly dinners and alternating weekends with dad equaling 20% of the time (an 80-20 split).
Parental rights
Parental rights refer to the fact that both parents have a right to spend time with their children and make decisions on their behalf. Courts allow parents to take a stab at working this out and hope that parents can come to agreements within each parent’s rights while thinking of the best scenario for their children.
For example, a father who travels a lot for work may not be able to physically have his children live with him 50% of the time. He might agree to maintain his legal parental rights while abdicating his right to time, letting the kids live with mom and visit him during the week and on weekends.
Visitation rights
Parents have visitation rights, but realize that this is a fluid scenario. It isn’t uncommon for children to be upset and not enjoy being at one parent’s home. Maybe one parent is stricter, or has a new partner they don’t like. Whatever the reason, the child may not want to go. It is your responsibility as a co-parent to encourage your child to spend time with their parent — again, this is always assuming that there is no endangerment and that the other parent is a “good enough” parent to take care of the child.
It’s important to understand that visitation rights have nothing to do with financial obligations. What that means is you can have a deadbeat dad who doesn’t pay a dime in support and they still have the legal right to see their child.
“A parent can never withhold visitation with the children due to the other parent not paying support," Chicago-based matrimonial divorce lawyer Tiffany Hughes of The Law Office of Tiffany M. Hughes told Mom.com. "The Court considers financial support and parenting time to be two completely separate issues that have no overlap with the other.” This can be one of the hardest things to reconcile in your mind, but you’ll need to in order to keep the favor of the courts. I learned this the hard way.
If you have questions about your parental rights, you should discuss the matter with your attorney. If you don’t have an attorney, most courthouses have legal resources for you to review and assistance when it comes to completing forms and filing paperwork with the courts.
To hear experienced insight from divorce attorney Jonna Spilbor on how parental rights are decided, check out this episode of Divorce Tips:
