The Legal Implications of Child Custody During Divorce

(US law and generally) No doubt, the greatest victims of divorce are the children. The impact of a custody decision on a child’s mental and physical health is enormous. Disturbances in the parent / child relationship cause depression, anxiety, antisocial behavior, and may impair the child’s ability to form healthy relationships as an adult. Notable studies (Brook, Zheng, Whiteman, & Brook, 2001) have unequivocally linked angry parenting practices with the expression of anger and aggression in very young children.

There is a persistent and harmful misconception that joint custody predictably provides better long-term outcomes for children of divorce. It is well documented through years of scientific research that actual custodial arrangements are secondary to other issues. Instead, the greatest factors influencing child adjustment are the levels of parental conflict and the quality of parenting that the child receives.

Complex Child Custody Laws Require Effective Legal Assistance

Although child custody laws vary from state to state, most integrate a similar list of statutory factors that assist judges in performing a comparative fitness analysis. While consideration of these factors is mandatory, judges are given great leeway in decision-making. With this in mind, it becomes imperative to realize that bitter parents who litigate child custody often get distracted hurling accusations against each other.

This scenario provides very little useful information to the presiding judge, who needs to know which parent is the best suited for custodial status. While it is certainly necessary to point out negative factors and justifiable reasons for limiting visitation or decision-making authority, it is also crucial to give the judge positive information he or she can use.

Delays in the case are damaging for children and should be avoided. The American Bar Association advises judges and attorneys that, “When litigation proceeds at what attorneys and judges regard as a normal pace, children often perceive the proceedings as extending for vast and infinite periods. The passage of time is magnified for children in both anxiety levels and direct effect.”

Gender Bias

With the abolishment of the Tender Years Doctrine, a new presumption that favors gender neutrality is indicated in most state statues. Nevertheless, there is no doubt that perceived gender bias still exists in our family court system. Sometimes this bias is against the mother, especially if she works full time or becomes labeled an over protective parent. Fathers may experience the same frustration when the child is young and he has had limited involvement in day-to-day care.

Divorce and child custody issues cause a tremendous amount of financial and emotional stress, igniting volatile battles between the sexes outside the courtroom too. Political action groups advocate for the constitutional rights of both mothers and fathers, frequently ignoring the fact that the law requires the child’s best interests to be paramount to that of either parent.

Implications for the Future

Divorce and child custody issues are vulnerable to trends that favor public opinion. The law today is substantially different than it was twenty years ago. The way that law is practiced is also changing. The hardball litigation tactics used by older generations are being gradually replaced with a preference for negotiating child custody cases when possible.

In fact, only a minority of cases proceed to trial. These will typically involve complicated issues such as domestic abuse, child neglect or a personality-disorder parent. The National Council of Juvenile and Family Court Judges publishes a bench guide for assessing safety in these situations and offers recommendations for developing a plan that works.

Robert Tritter

Robert Tritter

Robert Tritter

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One thought on “The Legal Implications of Child Custody During Divorce”

  1. When you’re divorcing, there’s a lot to understand. Get the basics on every aspect of divorce, from the different ways you can process your divorce, to how you calculate child support, to the rules of property division. You’ll rest easier when you have the facts.

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