If there is a Rule #1 in Family Law that spouses should follow during divorce proceedings, this is it: Do not listen to friends, family, or others who have been through their own divorces, or who believe they know “the system.” Usually they are wrong—and sometimes very wrong. The most important thing a client can do (for ex., in the case of custody) is understand what is “real” and what is not. Every case is different and whatever the result was of your cousin George’s divorce, it is of little-to-no help in understanding or predicting what will happen in your case.
Below are seven clarifications about child custody, an emotional issue that many parents hold misguided beliefs about.
1) Custody is not only about where a child lives – “Physical custody” is just one part of the custody decision process that a judge must consider. “Legal custody” is the other. Legal custody grants the chosen parent the responsibility to make decisions for the child concerning issues such as medical care and schooling. In California, the most common outcome is that the parents share legal custody. Both types of custody are separate decisions wrapped up in any custody order.
2) Do not assume you will automatically be named primary caretaker – Simply because you were the person who has taken care of the kids most of the time while you were married does not automatically mean the judge will name you primary caretaker in the court’s orders. In fact, the court will “aim” towards a 50/50% time share. Since you and your ex are no longer together, prior arrangements will not determine what the future custody arrangement looks like.
3) The employment status of you and your spouse will not impact the court’s decision much – The courts today are very comfortable giving custody or visitation time to a parent who works, as long as appropriate care arrangements are made for the time the parent is at work.
4) You do NOT get a say in what happens during the other parent’s time with the child – Other than if you can prove your child is in physical danger, you cannot interfere in how the other parent spends their time with the child. You don’t like it that the new boyfriend/girlfriend spends time with or watches your kids? Too bad. You do not get to pick the babysitter (or the love interest of your ex) and you cannot set the kids’ schedule. The other parent’s time is their time.
5) You are not allowed to schedule things for the kids on the other parent’s time – If little Suzy has softball every weekend and Mom has visitation every other weekend, then Mom must agree to it or Suzy is going to miss a lot of softball games. The best plan is to talk to the other parent about extra activities that might impact their time and get their agreement to it (in writing) before signing the child up.
6) The court does not care if you have a nicer home or more money when determining custody – You have a mansion where your kids can have their own rooms and be waited on by a housekeeper? Very nice . . . But it won’t matter to the court when it is determining custody. As long as a parent can provide decent housing (with a bed for the child and no dangerous people living in the home) a judge will be satisfied. The judge may we wish he/she had the option to live in that mansion, but it will not influence the court’s custodial time share decision.
7) Kids don’t get to pick where they live – Maybe in a Hollywood movie a child will get the option to pick where they want to live. Not so in reality. In California, once a child is 14 (the law may be changing to 12 very soon), the court must consider where the child wants to live when making custody orders—but the child does not decide. Sometimes even younger kids have their wishes considered. Still a child’s wishes are only one factor in deciding what is in the “best interest of the child,” which is the basic test for any custody decision.