The phrase you will hear over and over as you work out a child custody agreement with your spouse is “in the best interests of the child.” This goal takes precedence over all others as you, your mediator or attorneys, and the court consider how your relationship with your children will continue as your marriage ends.
What exactly these “best interests” are will depend on a number of factors, including the children’s preferences, you and your spouse’s personal health and lifestyle, and the ability of each of you to support a standard of living that benefits your child while keeping him safe and healthy.
If you and your spouse see eye to eye on the subject of custody, you don’t need to use the court system to hammer out the details. Working together with a mediator, you can create a custody agreement, set up a visitation or joint custody schedule, and bring the matter to a swift resolution.
If you disagree on the terms of custody, however, you may need to take the matter to court — which means that you will spend time not only on creating a case for yourself as a stellar parent, but also on proving that your spouse is not a fit custodian for your child.
This process can be contentious and can severely damage the relationship you have with your spouse — one you need to maintain as you continue to be parents to your child. To fully understand the challenge or compromise that may be ahead, you will need a firm grasp of child custody laws.
Understanding child custody and child support
When considering a child custody case, the court will take a number of factors into consideration. These include:
- the age and health of the child
- the emotional bond between the child and each parent
- which parent has been the primary caregiver to the child
- how much time each parent spends with the child
- any history of violence, physical abuse, substance abuse, and other dangers
- the child’s current living environment and its safety
- in some states, exposure to secondhand smoke
- each parent’s employment situation and ability to take care of the child
- the child’s own preference for living with one parent over the other, if the child is at least twelve years old
- potential disruption to the child’s established routine, and the best way to minimize inconvenience and change in the child’s life
- the child’s choice of religion, if the child is twelve years old or older and the parents are from different faiths or disagree on the religion in which the child should be raised
- On the issue of religion, courts in most states will look closely at the potential for “actual or substantial harm,” or the risk of such harm to the child if he or she is raised in a specific religion. If no harm is indicated and the child is under twelve years old, the court will most likely defer to the First Amendment right of the custodial parent to raise the child in that parent’s religion of choice. There are exceptions to this general rule in just about every state, however, so if religion is an important point in your custody case, you may need to build a particularly strong case to put one parent’s First Amendment right over the other.
Getting a Temporary Order of Custody
When you and your spouse first decide to divorce, you do not necessarily have the right to take your children and move out of the house. Before you grab the kids and leave, the court has to grant you temporary custody, recognizing that you will be the custodial parent until your divorce-settlement agreement has been finalized. Your temporary order of custody will establish either of you as having primary custody, as well as set the visitation arrangement for the other parent.
At the same time, you can file for a temporary order to determine the amount of child support the noncustodial parent will pay to the custodial parent to feed, clothe, and house the children. Generally, the custodial spouse will be given temporary possession of the family home as well, to maintain a level of normalcy in the children’s lives.
Even if you have not yet filed your petition for divorce, you can already apply for temporary custody.
If you and your spouse can agree on a custody arrangement for the time being while you sort out the details of your divorce, you can fill out some paperwork and submit this agreement to the court for approval.
This makes your arrangement legal and binding until it is superseded by your divorce decree. If you can’t agree on a custody arrangement on your own, you can have a judge make the decision for you.
The courts put the safety and welfare of your children first — just as you are doing by addressing this issue promptly — so your case can be fast-tracked and heard by a judge within a few days. You will fill out an order to show cause (OSC), a basic document that defines the order for which you are asking.
This document sets a date and time for your hearing, and orders your spouse to come and “show cause” for why you should or should not be granted this temporary custody. In addition to the OSC, you will submit your own testimony in writing, explaining why you need this and any other temporary orders. If other people are involved and have firsthand testimony to share, you can submit statements from them in writing as well.
You or your attorney will also draw up a proposed temporary order, which the judge will sign in court if it is approved. You will need to make certain that a copy of each of these documents is delivered to your spouse, and prove this to the court according to the laws of your state.
Consult your attorney or see your state’s divorce laws page online to be sure this is done properly. If you are asking for child support, be sure to bring proof of your income and expenses when you appear in court (or in the judge’s chambers). In some states, you will need to file documents with your request for the temporary order so that the judge can review them in advance of your hearing.
During the hearing, the judge may ask questions of you and your spouse (if he or she attends) and will make an immediate decision on your order request. This will establish one of the parents as having primary custody until the divorce becomes final It does not necessarily mean that you or your spouse will have permanent custody, or that you can restrict your spouse’s access to your children indefinitely.
All of these issues will come up again as you complete your divorce-settlement agreement. In a few cases, the judge may determine that he or she does not have enough information to make a decision on temporary custody, so you will need to work with your attorney to gather the missing documentation.
The judge also may decide that your spouse did not have enough notice to prepare adequately for the hearing, so another hearing will be scheduled for several days or weeks down the road. If this is the case, the judge will grant an order that provides a custody arrangement that is the least disruptive to the children, but it will only be in effect until the next hearing.