How Do I Win Custody of My Children?

“What will happen to my children during separation and divorce?” This is a question every family law attorney encounters and it is fraught with anxiety and fear. In this episode, your host and guide, Attorney Leigh Sellers, provides you with actionable information to ease your mind and help you make the best decisions for your family.

Key insights from the episode:

[1:25] – Why the question is not “how do I win custody?” but rather “how do my children win?”
[1:38] – How the Court decides custody matters
[3:03] – Why every child custody case is unique
[4:06] – Are the children going to be with Mom or Dad?
[5:11] – Factors that determine child custody arrangments
[8:34] – What “child custody” means
[10:40] – How do we craft a schedule between two households?

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The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team (NC/SC) at http://www.TouchstoneFamilyLaw.com

Read Full Transcript

Hello there. Going through a divorce? Considering one? Sorry to hear that, but here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place. A new world really, with its own rules, its own expectations and in many ways, its own language. But don’t worry, you have a knowledgeable guide along the way, a family law attorney with three decades of experience under her belt.

And now, here she is. Your host and guide, Leigh Sellers.

Hi everyone, and thanks for tuning into another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. And, in this episode, I’ll be answering another question that many newcomers to Splitsville have, “How do I win custody of my children?” So let’s dive in.

I can’t think of many questions that are fraught with more fear intention than the question of, “What will happen to your children if you separate or divorce from your spouse?” No one asks that question without it coming from a true place of fear, because people are very frightened that they are going to lose their children somehow.

They often come in asking me how are they going to win custody? The truth of the matter is, that the real question is, “How do your children win the custody?” The court system and the law is really focused on the children, not on you as a parent, or the other parent.

They are mandated by statute and case law to protect the best interest of children. The real question that the court system has is, “How do we best formulate a plan and a decision that is going to serve the interest of these particular children the best?”

In reality you’re not really the focus. While it is your focus, you’re going into a place where your thoughts, and wishes, and desires are not the determinative factor. It’s an interesting dilemma to be in, because what we really need to do is back up and make sure that you understand what is best for your children, that you can articulate what is best for your children, and that you can convince a court of what is best for your children.

You may not agree with your spouse or with the other parent on that issue, but it is still very important that you be able to look at the situation, not from what you want, not from you need, not from what scares you, but look at all of those situations through the eyes of your children.

What you’re going to find is the reason that there’s no specific game plan or set of rules, is because every child is unique. If you have more than one you know that, because even within your own family and own household, you’re having to make different accommodations for the personalities, and character, and age, and differences between these children that you have.

When you end up in a court of law or in front of a judge, they’re basically doing the same thing. They’re having to look at your family, your situation, your children, and strike a balance for what’s best in this particular home. It’s not an objective standard, so they’re not sitting there trying to objectively determine that every child in America needs a certain amount of food, certain amount of housing, certain amount of parenting time, certain amount of extracurricular activities. It’s not like there’s a scale.

What they’re looking at is, is the life and needs of your family. What can we do to help you through this contest? One of the first things to remember is, unless you’re looking at a situation where a parent is a physical or emotional risk, is going to put your children in danger. We’re not looking at either/or. It really isn’t a question of, “Are the children going to be with mom or dad?” It is a question of, “How are they going to be with mom or dad?”

The outliers, the situations where you do have people that have a serious mental health issue that’s being untreated, or a physical health ailment that is going to somehow make it more difficult for them to parent, or addictions, and there’s more dangerous issues, those are a completely different set of circumstances, and really worthy of an entire conversation on their own.

Let’s set those aside and let’s just focus on two parents who love their children, and both have their own skills and limits when they’re parenting their children within the household. What you want to look at is, historically, how have you divided the role in your household with the parenting? What are the children used to?

You need to look at it through their eyes. Who do they go to for various things, and look historically for, who has been the person running the children around to get them where they need to go? Who is the person who has been tucking them in bed at night, reading them bedtime stories, fixing their baths? Whose been preparing their meal? Who shops for the items they need? Who gets them to doctor’s appointments? Who checks in with the teachers?

First assess who the children look to for the various needs in their life? Then you want to step back and say, “Why is that?” Oftentimes it is because someone else can’t do it, often it’s simply because that’s just the way that the labor … there’s been a division of labor, and that’s how the family has chosen to do it.

Perhaps you have someone on the other side whose been in school and working, maybe the other parent travels a lot for work, maybe they’ve been ill. There could be a lot of reasons why you’re doing things the way you are. You want to understand why.

Then you want to look at whether or not that’s going to continue in the future. Are the circumstances when you’re living separate and apart, going to stay that way? Or will there be some change necessitated by the separation?

For example, there are households where to avoid childcare cost, parents will work different shifts. You’ll have one parent work the night shift, and one parent work the day shift, and that way there’s always a parent at home with the children.

When you’re in a different house that’s not necessarily gonna do any good, because that other parent isn’t gonna be there. At that time you may have both parents move to a day shift, or make some sort of adjustment, and that would change up what the future looks like. That’s why we want to understand what you’ve been doing, why you’ve been doing it, and is it likely to change?

The law is asking a court to consider any and every factor that can impact the child’s development, and that is wide open. That means pretty much anything is relevant to the issue of custody. Every fact that is important in your household to why you guys parent the way that you do will be important in court.

There’s really no area that isn’t potentially relevant, but there’s a question that you and I would have to discuss. When people are working with me is we have to decide, “Is this information relevant?,” which means that the court can properly consider it. Then again, is it really determinative? Is it so important to the answer of what needs to happen with these children, that it’s actually going to drive the decision?

You may have a lot of things that you come in and tell me that I do agree that they are relevant to issue of your custody case, but I might tell you that I don’t think they’re going to make your child’s custody plan, or parenting plan be one way or the other. I don’t think that they’re going to be a fact or an element that if a judge were deciding it they would find, “Oh, that’s my key. I have to build this entire parenting schedule or decision-making schedule around this particular fact.”

We have to really determine what is the most important aspect that’s gonna drive everything. A lot of people don’t even know what custody is. Custody is two things: one is, the parenting plan, which is just, where is the child going to be on any given night? Whose responsible? The other is legal custody, and that’s who makes the decisions.

When two parents are together and they’re living in the household together they both have what I would call 100% custody. They each have the power to take that child and make any decision for them. They can enroll them in school, they can take them to a doctor and get medical treatment, they could sign them up for T-ball. You both have equal ability to do that.

It’s not that you each have 50%. If you both had 50% that would require both of your signatures on everything you ever did for the children, because it would mean neither of you had the authority to act alone. That’s not what you have when you’re actually together with your child.

When you go through a court process the question the court is looking at is, do they need to change that? Should they maintain a situation where you both have authority to make decisions for your children, or do they need to give one parent a trump card over the other?

That’s only going to happen if they think the child needs that. If they don’t think that one parent is an appropriate person to make a medical decision, then they may decide that one parent has the final say in the event of a disagreement. To make that final decision about medical, generally, what you’re going to find is that the courts expect you to still discuss and try to make joint decisions for your children after separation and divorce, as you did when you were in the house together.

Sometimes that does not work, but if that’s the situation, the court is going to have to be convinced as to why the children would suffer if they don’t pick one parent over the other to be the decision-making person. That again goes back to how will the child suffer? Not how would the parent suffer, because they have to take the time to argue with the other parent, and they don’t want to. That’s not really gonna be what drives the decision.

You got to look and see how will this child suffer if these parents are not gonna be able to make a decision together, and whose best suited to make that decision? Most people are not as concerned about that. They really come in here wondering where their children are gonna be. They’re worried about not having time with their children. They’re wondering about not having influence over their children. They’re wondering about not being able to shape their lives, because the children aren’t in their presence enough.

I would say most people are most concerned about that parenting schedule. Again, this is the situation where we do not have a template. There are a limited number of options, because there’s only so many days in a year, and we have school, we have non-school age children, we have a variety of situations. But the court system wants parents to decide that as much as possible.

But if you do go to court then they are limited to the fact that there’s seven days a week, and they have to decide what schedule is going to best suit those children. When I sit down with people we will go through lots of potential ways to divide the week between two households, and think about the issue that you’re gonna have to decide how far away are your households. That’s gonna be important. What are your work hours? What is your schedule? What are your children’s schedule? Because all of those things are gonna be important in deciding, “How do we craft a schedule between two households that works to get the children where they need to be, and gets the children what they need on a daily basis?”

That’s really the challenge, and we’ll sit there and go through lots of analysis and ask you lots of questions, and scratch through multiple versions of calendars, and really help you try to come up with that. The hope is, is that you and the other parent will be able to make that decision together once you’re given the tools on how to think about it, and what to think about, and you’re given the resources on how to make it work, and some suggestions. That’s really the goal.

We would love for all of our clients to work that out and never need a judge to make that decision for them. But, if it’s gonna come to that, and you are gonna have to go and make a judge tell you how you’re gonna raise your children, then your attorney is going to work really hard with you to help make sure that you give a court system every piece of information that they could possibly need to make that decision to the best of their ability.

It’s not what we like to do, because we are putting your child’s life in someone else’s hands. We would prefer to keep it in your hands, and in the hands of the other parent. It can be done, and we do it all of the time, and we will work really hard with you to pull those things together.

The main thing that you’ve got to remember is that this really is about your children. It feels like it’s about you, and my heart breaks for parents who are going through the loss of their child for any day of the week, because most parents when they bring their children into the world, really are enjoying and soaking up the entire experience every day and every week. So there is a loss to the parent and they do miss having their children physically available to them in the same way when they’re in two houses, as when they were under one roof.

We do understand that, and we have some great resources, and some great counselors that can work with you to help you work through your own loss, and grieve your own change of circumstances. But, really the court system is much more focused on your children. You’re going, at least in this law office, to get a lot of guidance on how to refocus your thoughts on the child during this process, and to give you every tool necessary to set your child up for success.

Because if you and their other parent are good, your children are gonna be fine. They will make adjustments. The one way to make sure that your children will fail through divorce and separation is for you and the other parent to fail, to continue to parent these children together. The more you fight the more damage you do to the success of your children in the future.

It is going to be our ardent goal to try to keep that from happening to you, and to protect you if it’s impossible to protect your children if that ends up being impossible. But you will need to come in with a lot of information and a very open mind, and a very open heart, and a lot of trust that you can get through this process, and that you and your children are going to come out on the other end and be just as successful with the reorganization of your family, as you were when you were under one roof. Sometimes you may even find that you’re more successful, and that the lack of a poor marriage being in their life will actually give them two much better parents.

While it’s a terrifying place to find yourself in in the beginning, if you have the right tools, and the right resources, and the right guidance, you can get through it, and you and your children will end up being fine. That’s really what we want for all of our clients, and we know that’s what you want.

So there you have it, another neighborhood of Splitsville explored. There’s still so much to learn here, so I hope you’ll tune into the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources and sound advice, if you know where to look. See you next time.

The insights and presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney/client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.

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