Children need stability; we all do. When there is an ongoing fight over child access or child custody and visitation as it is more commonly known, it is important to realize that the term "stability", in the context of fighting over the division of parental time, is an oxymoron. Particularly, if there is no agreed upon visitation schedule. For example, in some cases one parent may disingenuously stress that access to the other parent must be limited for the sake of the stability of the children. However, when there is an ongoing power struggle to maximize or minimize one parent's time over the other, the lives of the children are anything but "stable".
Children adapt. The world is busy. Life is hectic. The theories or justifications of years past, the "traditional visitation schedule" if you will, that subscribed to the notion that children need to only regard one parent's house as "home" and that they must sleep in the same bed every night, is far less important than often proclaimed. These days, many experts suggest that a rigid "every other weekend and one or two nights a week for dinner" visitation schedule is the minimum recommended arrangement. For many separated or divorced parents, this arrangement may simply not be optimal.
Having parented on a court-ordered, equal-time-sharing schedule, for over a decade, I can attest to the fact that a 50-50 parent split schedule, is far more workable than one might imagine. While it is not presumed that a 50-50 parent split schedule is best for all children in all situations, it seems like a fair place to start. Furthermore, I have found that if parents truly strive to act in accordance with their children's best interest, and if each parent operates from this position of theoretical and practical equality, it is far more likely that one parent will voluntarily, if, when, and as needed, willingly make the sacrifice of diminished time if it is truly beneficial to their children.
If Dad, for example, has been treated as an equal parenting partner, and not as a weekend visitor, there is a greater likelihood that he will go along with future modifications to a schedule if the children's needs or routines suggest a change is appropriate. Once the power struggle for control and the claim for the overwhelming majority of time are abandoned, a set visitation schedule simply will not be as important when compared to what may genuinely be in the children's best interests.
If the division of time is not mutually satisfactory, or if it is not otherwise possible to arrange a basic schedule, a court ordered schedule will ultimately be forced upon already hostile parents. In such situations, any written document or court order must leave nothing open to interpretation. Your life must then be rearranged to fit into the court-mandated child visitation schedule. However, this is far easier and far less damaging to the children than the constant tug of war that often will occur in parental skirmishes. Simply left to the interpretation of loosely worded court orders, some parents will often actively fail to rearrange or modify scheduled activities and time frames leaving the other parent with less time than mandated thereby continuing the struggle for the children's time and loyalties.
When it comes to where children of separated and divorced parents live, how much time they should spend with each parent, and all the related things that come with parenting, what is really in the children's best interests? How should these important issues be decided? Is it ever in the children's best interest to have a stranger in a black robe sitting behind the desk in the courtroom decide such important matters? Shouldn't these issues be decided by the parents who want to put their children first?
When it comes to deciding cases involving children, acting in the best interest of each child is the guiding principle. It has been said that the "best interest standard" really comes down to a judge's "best guess" as to what is optimal for children in a particular case. Who is the judge and why he or she is the best person to make this decision for you and your children is another story for another day.
Parents in conflict will quickly learn the court lingo when it comes to child custody disputes. Everything that either party does is somehow, someway, supposedly linked to, and directly in pursuit of, what are the "best interests" of the children. The "end justifying the means" often becomes the rationale for parents in moderate- to high-conflict cases. High-conflict custody cases often generate a myriad of false allegations and accusations. If the overall goal is to "win" custody, then does it matter if Dad, for example, is falsely accused of inappropriate conduct with his child?
If Mom is recklessly exaggerating or outright fabricating statements, as long as they are only in an effort to make Dad "look bad" so that he will not get custody, is there any real harm done if that accomplishes what Mom knows is really in her children's best interest? Probably not - well at least not in the eyes of a selfishly blinded parent caught in a war of emotion. The sad reality is that in the majority of cases such as these, each parent tries to look his or her best by making the other parent look incompetent or unstable.
The run of the mill "we produced a child and now we hate each other" type of case is a mud-slinging contest with the echoing of the words, "it's in the best interest of the children." In the classic script of course, the man is always abusive, threatening, and intimidating and should only have only supervised visitation to protect the safety of the children. The mother is often referred to as promiscuous and is accused of being inattentive to the physical or emotional needs of the children while also allegedly engaging in a scheme to alienate the children from the father and his family.
The "best interest of the child standard" is not supposed to be a test on good parent vs. bad parent decision-making. However, although some state courts may characterize the criteria and terminology differently, the gist of the court's reasoning in deciding who gets the "prize" of residential custody is to evaluate certain factors. The court examines these factors and weighs the advantages and disadvantages of the alternative environments in deciding who the children get to live with. The criteria for judicial determination include:
Fitness of the parents Character and reputation of the parties Desire of the natural parents and agreements between the parties Potentiality of maintaining natural family relations Preference of the children Material opportunities affecting the future of the children Age, health, and sex of the children Residences of parents and opportunity for visitation Length of separation from the natural parents Prior voluntary abandonment or surrender of the child or children
At the conclusion of all the trial testimony, a judge, a complete stranger to you and your children, will say that he or she has examined the totality of the situation in light of these factors. He or she will say that the court has considered all the factors and that the decision was reached without specifically focusing on any one factor in and of itself. As far as all the possible lies that the court will have heard as testimony, expect that from the bench you will hear something like, "I have had an opportunity to observe the witnesses and assess their credibility and demeanor throughout these proceedings. While I do have some credibility concerns, I believe that it is in little Johnny's best interest to remain in the care and custody of his mother/father (pick one)." Often, when the "best interest" jargon is broken down, there are far more questions than answers.
For example: In child custody litigation, the court, in applying these factors, is called upon to consider the desire of the natural parents and agreements between the parties. Well, let's see. They are both fighting for custody of their children. They are willing to spend the equivalent of their children's college education on attorney's fees and litigation expenses. They are willing to air out all their "dirty laundry" in public. Does the one who will stop at nothing to win have the most desire? Does he/she really want the children to live with him/her, or is he/she just trying to punish the other for ending the relationship? Is it a little of both? Does it really matter what the motive is as long as the "best interests of the children" are served?
Hopefully, the judge will award primary custody to the parent who will allow the children to grow up with a mother and a father both actively involved in their children's lives. Often, that does not happen and the children pay the price. If you do not settle your child access issues following a separation or divorce, you will ultimately turn your children's fate over to a virtual stranger - a judge, at a later date.
When it comes to following the law, judges perhaps have the most discretion in the area of child custody disputes. In practice, they apply facts - or at least "facts" as they appear to them. They decide what the facts are and they decide how to best remedy whatever facts they deem in need of judicial intervention. The rules of law give them great latitude when it comes to determining what they believe to be in the children's best interests. Ultimately, they make the major decisions pertaining to each family law case. They, not you, get to decide how things will be. Such discretion may or may not be a good thing, depending on who is doing the judging and why. In short, you, both as parents, need to grow up and work out an equitable custody agreement, your children will thank you one day.
Mike Mastracci is a nationally recognized family law attorney and mediator with over 20 years of professional experience. He is the author of the newly released and highly praised book, Stop Fighting Over the Kids: Resolving Day-to-Day Custody Conflict in Divorce Situations. In addition to his legal, collaborative and mediation skills, Mastracci brings much more to the table: with an insightful, kind and helpful approach, he shares his personal child custody issues and challenges to better serve you in solving your legal, practical, parental and situational problems. To learn more about his unique style of persuasion, go to http://www.StopFightingOverTheKids.com
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