If you have a shattered relationship with your spouse and you feel you will be unable to resolve all of the issues of your divorce outside of court, focus your efforts on trying to agree on custody first. A courtroom custody fight should be avoided if at all possible. Make sure you consider the options presented in other articles on our site for resolving your dispute outside of court. Having a court decide on custody is likely to be costly, emotionally draining, embarrassing, unpredictable, and may result in a solution that is less than ideal for your family. If that weren’t enough, parental conflict over children has significant negative effects on the kids. Aside from the initial court fight, an inflexible, court-imposed custody order can lead to ongoing conflict.
Having a judge decide custody is costly because not only will you generally require an attorney to represent you, but one or more experts may also be required by the court or recommended by your attorney to perform a custody evaluation. In some areas these evaluations can cost tens of thousands of dollars. And, although the couple pays for the expert, the expert is independent and won’t necessarily present an opinion that matches the wishes of either parent.
Custody court cases are emotionally draining and embarrassing because your private life is on display in a public courtroom. Anything you may have done in your past that might reflect on your character, or any mental health issues you may have now or have had in the past will be fair game for the other side to drag out.
The unpredictability and limited quality of results of custody trials is due to a number of factors. You usually have little or no control over which judge will hear your case. Judges may have biases that come from dated notions about custody. They don’t usually have the opportunity to see the long-term effects of their custody decisions and are not required to read or utilize research on such matters in making their decisions. In some jurisdictions, judges rotate duties, or inexperienced judges are assigned to hear family court cases. These situations make it difficult for any judge to be an expert in evaluating what will be best for the child. Of course, there are many great judges who can be trusted to make wise decisions. However, you cannot guarantee that you will get one of those.
The amount of time a judge can take to make a decision in a custody trial is limited. This, coupled with the reticence most judges feel about making custody decisions, has led to the increasing reliance on outside experts. A custody evaluator may be appointed by the court to interview the family, babysitters, teachers, and others. An evaluator may administer psychological tests to parents and children. Evaluators are supposed to limit their work to gauging the parties’ “parenting capacity” and how that fits the psychological needs of the child. However, many evaluators, often at the urging of judges, expand the role significantly. Evaluators frequently create detailed recommendations for parenting plans, which are likely to be accepted by the judge. There are few rules about how custody evaluators should perform their work and few procedures for complaining if a parent believes the evaluator got it wrong. The lack of studies to support the life altering conclusions developed by evaluators is a cause for concern, even for some evaluators.
Finally, your child’s developmental changes or special needs will likely result in your wanting changes in your parenting schedule. The only way to achieve a flexible schedule that is able to grow and change with your children’s lives is through agreement.
