Should You Pursue Sole Custody of Your Children?
During an acrimonious divorce or other breakup, your first impulse may be to try for sole custody of your children so that you don't have to co-parent with your former partner. But, since the court system favors joint custody, it may not be worth the time, money, and emotional turmoil to fight for full custody.
First, there are two types of sole custody. Sole physical custody means that the child lives with one parent and may have visitation with the other parent. sole legal custody gives all decision-making responsibility to one parent, but the other parent may be given liberal visitation and rights to information regarding the children.
The main form of custody granted in the US today is joint legal custody so that both parents can participate in decisions made on behalf of their children. Joint physical custody may also be granted in some cases in which case the children split their time between each parent on an equal basis. Courts want both parents to be involved with their children if at all possible.
If you want sole custody, the burden will be on you to prove that the other parent is unable to adequately perform the parental role. And, remember that the other parent will still more than likely be involved in your children's lives if he or she wishes to be. This can even include parents who have abused their children. The court may order supervised visitation and therapy for the parent with the eventual goal of that parent taking on more responsibility or spending more time with the children.
There are no hard and fast rules on when sole
custody
is granted. Each parenting situation is unique as are attorneys and
judges. The best interests of the children
are supposed to be
the basis of any custody determination. However, the court's definition
of best interests and yours may be entirely different.
In some cases, courts are more likely to consider awarding sole custody. If a parent has been physically or sexually abusive to a child, this could result in a full custody reward to the other parent. However, some malicious parents use false accusations of such conduct to try to win custody away from a parent who should rightfully get to participate in parenting. As some courts are savvy to this tactic, you probably need substantial proof of the abuse before making such claims in court. If a judge thinks that you are making false abuse accusations, he or she may grant custody to the other parent.
Incarceration of a parent may be considered reason to grant complete custody to the other parent, particularly if the jail term is lengthy. Mental illness or substance abuse could also result in custody going to the other parent. However, the court may order therapy or treatment and schedule future custody reviews to determine if the parent is ready to begin sharing custody.
A history of domestic violence may result in a sole custody award. However, the judge will be more concerned with the effects of the violence on the children rather than your past injuries. Not all judges will consider harm to a mother to be an issue if the children were not involved. Domestic violence can be a concern when sharing legal custody as violent partners often do not possess the relationship skills necessary to talk over issues and reach decisions without resorting to abuse.
You have a good chance at sole custody if the other parent is totally not involved with your children. However, the parent may make an appearance in court if you file for a custody change, in which case, you may not be able to get a different custody arrangement since the other parent now wants to be involved.
Before you decide to pursue sole custody, consider the repercussions. The other parent may badmouth you to the children and use them as weapons against you. This type of emotional abuse is difficult to prove and probably won't be heavily considered when a custody award is made. But, your children may suffer greatly from this behavior now and in the future. You may even become a victim of violence whether by that parent or at his or her instigation. A child custody battle can be very expensive and could even lead to your bankruptcy. You could be paying off your attorney debt for years to come even if you don't win. Kidnapping of children by the other parent is also not uncommon.
Keep in mind that parents can have joint legal custody and still have ways to mitigate conflict. For example, one parent might be responsible for all decisions related to school and the other for all religious decisions. In this scenario, the parents would not have to reach a decision together; they would only have to communicate the decision they personally made to the other parent. Other tactics to reduce the chances of violence can be built into the parenting agreement such as rules for visitation exchanges and communication guidelines such as email only. If your situation could be handled by some of the strategies mentioned, you may not want to engage in the court battle for full custody.
The decision to pursue sole custody should not be made lightly. Your attorney should be able to advise you on your chances for winning full custody in your court system. Unless you have one of the special situations mentioned above or another substantial reason where you can prove potential harm to the child, joint custody may be your best choice.
