The most emotional part of your divorce will involve the custody decision. It is also the most important. If you have children, the court will compel you and your ex-spouse to maintain as harmonious a relationship as possible, because your joint cooperation is vital to the well-being of your children.
In the past there was a strong presumption that the mother would make the best custodial parent. This is because the mother was the homemaker and natural caretaker of the children while the husband was the primary earner. This presumption was particularly true with younger children and especially with daughters.
Fathers, in the past, could only hope for custody by convincing the court that the mother was unfit to care for the children. This usually meant that the mother was a substance abuser or otherwise unsuitable because of psychological or behavioral problems that would be injurious to the children.
In more recent years, the presumption has weakened that the mother is always the best custodian of the children. Courts now consider what is in the best interests of the children when deciding upon the custodial parent. As a practical matter, this still ends up being the mother in the vast majority of cases.
With this in mind, leave aside your personal animosities when dealing with matters of your children. Since the judge will focus on the best interests of the children, any argumentativeness, unfairness, or unwillingness to cooperate will only work against the party acting in such a manner. This does not mean you should not stand your ground on certain issues. However, the judge will expect your actions to be reasonable, in light of the "children's best interests."
Before proceeding it is important to understand the different types of custody. Historically, sole custody was the usual form of custody. That meant that the custodial parent had both physical custody or possession of the child and legal custody or sole authority to make all decisions concerning the child. This type of custody, with the noncustodial parent only having visitation rights, remains the most common arrangement.
In recent years, the concept of shared or joint custody has gained in popularity. This means that both parents have an equal say in the upbringing of the child�that is, they share legal custody. However, one spouse may continue to have sole physical custody.
Joint physical custody of the children can also be provided. Under this type of custody, each parent has exclusive physical custody for alternating periods�which may, for example, be certain days, weeks, or months per year. While it seems a fair arrangement, many courts and psychologists believe this is harmful to the stability of the child, who loses his/her sense of "home." This arrangement is also called divided or alternating custody.
Another possibility is split custody. Here both the husband and wife each gain custody of one or more children. In essence, the family becomes divided. Courts understandably frown on this because it means not only separation of one's parents but also separation from siblings.
In deciding custody, more and more courts are determining which parent is the more active caregiver. That is, who does the child most rely upon for day-to-day care? Courts believe continuing the primary caregiver as custodian provides the child the most stability.