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
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
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
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.