Why You May Not Want to Fight for Sole Custody

You’re getting a divorce from your spouse. Maybe they had an affair or a string of affairs. Maybe they were manipulative and controlling and wouldn’t let you go out with your friends. Maybe they made terrible financial decisions and drove your family into financial ruin. Maybe they liked alcohol, pain killers, gambling, or partying “a little too much.” Or, maybe you were married young and you just grew up and apart.

Regardless of the reason for the breakup, you’re splitting for good. But, you’ve been raising a family together and you have children under the age of 18. How are you two going to handle child custody after the divorce is final?

Was the breakup bitter? Are you planning on punishing your husband or wife for their bad behavior by asking the judge for sole physical custody of the kids? Or, are you certain you’re the better parent and you’re the best one to raise your children full-time? Do you feel it’s best for your kids to spend as little time with your soon-to-be-ex as possible?

Do You Have Extreme Circumstances?

We’ll tell you right now that it is very rare for parents to get sole custody of their kids except in extreme circumstances, such as when one parent is sexually or physically abusive toward the children and even then, they may very well have supervised visitation. If your spouse has not been arrested for domestic violence and they’re not abusive, you may want to skip seeking sole custody of your children. Below, we explain why.

First off, take a moment to think about your motivation. Pursuing sole physical custody can be a long and expensive process if your spouse doesn’t automatically agree and they fight it. If you’re anticipating a court battle, pause and put thought into your motivation. Are you seeking revenge for something your spouse did like have an affair with a co-worker or blow your entire life savings, is that your primary driver? If you’re trying to hurt or even crush your spouse, is that a valid reason to keep your children away from their other parent?

Or, is it another reason? For example, does your spouse want to move back home to another state with your kids, or do they want to raise your children in one religion and you want to raise them in another? In this scenario, what should be considered in the decision-making process is what’s in the best interests of your children.

Is it Decision-Making Power You Want?

If one parent wants control when it comes to making important decisions about education, religious upbringing, where the children live, and healthcare, it’s a lot easier for a parent to seek decision-making power than it is to seek sole physical custody through trial. And, it can be a lot easier to get that than it is to get a judge to award sole physical custody.

Instead of putting your focus on what you can take away from your spouse, focus your energy on crafting a sound Parenting Plan that has your children’s best interests at heart.

If you’re like most of our clients, you have zero desire to give perfect strangers all the power when it comes to your family. If you’re planning on battling your spouse for sole custody and you don’t have a clear and convincing reason why you want it, you’re most likely going to end up at trial and in front of a judge. While you may have rehearsed the trial in your head a dozen times, we urge you to seriously reconsider.

Children’s lives and futures should not be determined by judges unless abuse is a real issue. Judges, guardian ad litems, family relations officers, and attorneys for minor children are all strangers to the children they represent. While they may have good intentions, a child’s parents know best. When you take your custody battle to court, your child’s custody is determined by people who don’t know you, your spouse, or your children.

They conduct a short-term study and make a decision about a broken family who is under a microscope when they are at their worst, each and every one of them. What’s more, when people are observing and evaluating families for the sake of making a child custody determination, they have their own agendas and biases, some of which may be unknown to them.

What can happen is a parent can try to control the situation too much and it backfires; they end up losing control and the outcome is out of their hands. In the worst-case scenario, a parent hires a Pitbull attorney and they have a plan. They think they’re all set and they’re going to get sole physical custody. However, their spouse has their own agenda and their own attorney too.

Unless your spouse has committed domestic violence or they’ve been sexually abusive, or there’s another extreme circumstance, it’s highly unlikely you’ll receive sole physical custody, and you’d have to pay all these extra legal and court fees and have to deal with all the stress of litigation. Also, if you seek sole legal custody and you don’t have a valid reason, it sends a message to the court that you’re unwilling to promote a healthy co-parenting relationship with your ex and it could end up backfiring. If your spouse is willing to compromise and you’re the one pushing hard for an extreme solution, you could look bad in the judge’s eyes, creating the opposite effect of what you intended.

For assistance with a divorce or child custody matter, or both, contact Claery & Hammond, LLP to schedule a free consultation.