One of the hardest things to come to terms with when getting divorced is that you will no longer be seeing your children every single day, sending them off into the world each morning, and tucking them snuggly into bed each evening. I previously wrote a blog providing some details about legal custody, child sharing schedules, holiday schedules, vacation time and other standard issues you might need to address as part of the custody terms. In this week’s blog I am going to shift the focus to some of the legal concepts that the Court typically considers when making orders involving the sharing of children. In mediation it is the parents who will make the decisions, but sometimes it is helpful to understand how the Court approaches some of these issues as you sort things out with your spouse. We will explore the standard of “best interests of the children”, the focus on maintaining the ability for the children to maintain a relationship with both parents, the issues of stability and safety, and guidelines on when the Court might consider input from the children when making decisions.
Best Interests of the Children When a Judge is considering how custody of the children will be shared at the commencement of the divorce the guiding legal standard is what child sharing schedule will be in the “best interests of the children.” Much goes into the Court’s consideration of the “best interests of the children”. They consider each parent’s ability to provide appropriate care and assure that the needs of the children will be met while under their care. They consider the relationship the children have with both parents and want to assure that the children will be comfortable with the custodial care provided in each home. The Court also considers the importance of consistency and stability and will consider how the care was provided prior to the separation to understand how to best foster continuity and comfort moving forward. They consider each parent’s availability and look to make a sharing schedule that maximizes the ability for the children to be cared for by a parent instead of a third party. The Court also considers the importance of the children to be able to maintain a relationship with both parents. Finally, they will consider the safety of the children to assure they are kept out of harm’s way and are in a nurturing, safe and loving environment.
Not Best Interests of Parent Absent from this consideration of the best interests standard is what is best for the parent, or what is the schedule that best meets the desires of a parent. The hope is that the wishes of the parent align with what turns out also to be the best interests of the children. When couples seek to mediate the issue of how they will share the children, it is important for them to approach this conversation from a place where what is most important is assuring the needs of the children are met. Most parents are able to look past what might be most convenient or desirable for themselves to fashion something that effectively meets the needs of the children. They are usually able to accomplish this while also fashioning a schedule that gives both parents the opportunity they are looking for to maintain their relationship with the children.
Fostering Relationship of Children with Both Parents As mentioned in the best interests conversation, it is considered to be in the best interest of the children to be in a position where they get to develop and maintain a strong relationship with both of the parents. Absent safety concerns, the Court wants children to get to spend quality time with both parents. In fact, the Court considers each parent’s support of the other parent’s relationship with the children and their willingness to foster that relationship as one of the factors in determining which parent should be granted custody. The Court appreciates parents who are focused on sharing and recognize the importance of the contributions the other parent provides to the development of the children.
Stability and Continuity I mentioned stability as one of the best interests considerations. If one parent has been the primary earner and the other parent has been the primary caregiver, it is likely the children have developed more comfort with the primarily caregiving parent. This does not mean the other parent should not be given the same opportunity to provide the care. There will be change through the divorce and the Court typically will explore how to maximize the less available parent’s opportunity to maintain those relationships after separation. The past is considered, but changes will be necessary to accomplish the ongoing maintenance of relationships with both parents. Setting up an ongoing schedule balances the importance of stability and continuity with the importance of ongoing opportunities to maintain the relationship.
Safety The Court takes safety very seriously. The wish to maintain strong relationships with both parents takes a back seat to making sure children are safe. The Court will set limitations, require supervision, and will require that any concerns are addressed before removing any safeguards placed to assure the children are safe. In mediation it is important to also assure that any safety concerns are addressed when considering the sharing of the children. It is in the best interests of the children to be safe and to be raised in a safe and comfortable environment free from abuse or improper supervision. This is a very big responsibility parents have to their children and choosing to work outside of Court does not mean these issues should get overlooked.
Children’s Preference Family Code 3042 states “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the Court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” This statute goes further to state “If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interest, in which case, the court shall state its reasons for that finding on the record.”
The state of the law is that the Court will consider the input of the children. It does not mean the Court is required to go with their preference. The Court must further ask what is behind the preference. It may not be in the children’s best interest to place them with the parent who provides the least amount of supervision, or lets them get away with things that might not be in their best interest despite the child’s wish to be placed primarily with that parent. The other concern with involving the children in making custody decisions is it places them in the middle. Children might be better served if they are not asked to choose between the parents. The adults can find ways to gauge the needs of their children while not placing them in a position to have to choose between parents.
Mediating Custody Issues When the issue of the sharing of the children is addressed through mediation the need to do a detailed analysis of the best interests of the children is not usually necessary. The couple may wish to know how the Courts approach these decisions, but otherwise these legal concepts don’t need detailed analysis. The big questions we grapple with is can we create a sharing schedule that is practical, that provides the children stability and continuity, that assures the children are safe, and that provides both parents with the opportunity to maintain a strong, loving and healthy relationship with both parents. Working together to fashion such an arrangement instead of fighting about it in Court is a good place to begin.