The Custody Fight


Every year, a million children see their parents divorce. And often, the most pressing concern of those two million parents is: "Who gets the kids?"

Angry, hurt and overwhelmed with both the divorce or separation process and their own feelings, parents may try to gain the upper hand by demanding full custody of the children. Their anxiety is fueled by well- meaning but disastrous partisanship of friends and relatives, who frequently urge them to fight for the kids in court. Before long, the family has slipped into a long, expensive and emotionally draining journey through the world of child custody litigation, the result of which is likely to please no one.

Why to Avoid Court

It's true that courts are responsible for preserving and protecting children's "best interests" when their parents divorce. All but a few states have laws that spell out what factors a court should consider when determining what best interests are. So why not let an impartial judge resolve your sticky custody and visitation disagreements?

Simply because laws set standards for children in general -- not your children in particular. A judge or court-appointed evaluator must try to understand the family's situation and each parent's position within a few minutes or hours, and then to make wise decisions with the children's best interests in mind.

Although state laws set guidelines for custody decisions, judges have considerable discretion in interpreting them and imposing their own views of what constitutes a good environment for children. The chance that a judge's decision will be ideal for your specific situation is slim.

With rare exceptions, you can do a whole lot better crafting your own decisions, which fit your unique situation, rather than hiring lawyers and turning the ultimate decisions over to a judge. You and the other parent can negotiate a parenting plan with the other parent that reflects the needs and best interests of their children and assures them the maximum possible contact with both parents.

Only if the children's safety or well-being is at risk and their parents cannot agree on a way to reduce that risk can court intervention be crucial.

Making a Bad Situation Worse

Even if your separation or divorce will be better for your children in the long run, for the short term, most children feel that things couldn't be worse. Divorce can shake a child's confidence that he or she will continue to be loved, cared for and safe, even when the child understands the reasons behind the decision.

A custody battle only makes things harder. Most researchers who study the effects of divorce on children believe passionately that using the court to resolve custody issues is a mistake in all but a few cases. It is far better, in their opinion, for parents to negotiate their own parenting agreement, with help from mediators, counselors and lawyers as needed.

No matter how much you may believe that your life would improve if you won and the other parent lost a custody battle, the fact remains that children need both their parents. That means that part of being a good parent after separation or divorce is finding a way to work with the other parent -- at least as far as the children are concerned -- rather than fighting over custody in court.

Negotiate? You Must Be Kidding

Not surprisingly, most divorcing parents panic at the prospect of working together. Fortunately, even couples with a painful or bitter past -- or ones going through an intensely acrimonious divorce -- can devise a successful custody and visitation agreement that favors the best interests of the children.

Even if the other parent is inflexible, or both parents want something mutually exclusive -- for example, sole custody of the children -- the process is not doomed. If parents can describe their concerns, goals and perceptions of the situation in some detail, they will at least have a good list of issues to address and resolve. And there's plenty of help available.

To improve your ability to work with the other parent, you may want to improve your negotiation skills, try to find ways to set aside your feelings regarding the separation or divorce, and get some outside help from a mediator or counselor.

The real key to success is to focus on your children, not a potential outcome in court. Think about your children's needs and wishes, your goals for them and concerns you have about their health, education, and their relationships with parents, siblings or other important people.

If both you and the other parent put your kids' interests first, you'll probably find that you can adjust your positions enough to produce a good agreement. Both of you will be in the best possible position to ensure that your custody and visitation arrangements make sense and serve your children well as they grow to adulthood, and work for you as well.