Child Custody: The Most Contentious Issue in Family Law
There are many contentious issues in family law, but custody seems to be the most egregious of the issues. This is egregious both when couples are married and when they are not.
Often couples share legal custody—meaning that each has a say in medical decisions as well as decisions with regard to schooling. Physical custody is the decision that is often disputed i.e. where will the child live? Couples can opt for one parent getting primary physical custody while the other gets visitation or they can share physical custody equally. The partner that gets primary physical custody usually gets child support. Many times one of the partners wants physical custody primarily because he/she does not want to pay child support. Often, he/she is not thinking of the welfare of the child. If the couple opt for shared physical custody, it is important that the parents live close enough to each other, so that moving from house to house is not difficult for the child and school is not affected.
Couples really need to think of the welfare of the child when considering custody. Social psychological factors need to be considered and these involve the age of the child, schooling, after school programs, ability to do homework, friends etc. When couples disregard the needs of the child and instead focus on child support issues or retribution for past pains, then the child is the one that suffers.
When couples are married, they can discuss child custody with the attorney and make their wishes known in a Marital Settlement Agreement where custody, along with support and visitation can be detailed. Once signed and notarized, this agreement becomes a roadmap for how the couple and the child will coexist. If the couple cannot agree on their issues, then a court appearance would be necessary. Once the couple is divorced, changes may need to be made to the Marital Settlement Agreement or to the final judgment. Reasons for the change may be due to a change in employment, a wage increase or decrease, a need to move or an illness etc. When this occurs, either party can arrange for an Order to Show Cause to be filed which would detail the change needed. If both parties agree on the change, then a court appearance would not be needed. If both parties disagree, then the change would be decided in court.
When couples are not married, child custody is usually decided by a Paternity Action that outlines custody, visitation and support for the child. If the couple can agree on these issues, then an attorney can prepare a stipulated judgment which outlines the agreed upon arrangement. However, if they do not agree, a court appearance would be necessary. Once the court order or judgment is in effect, a change may be necessary for reasons as stated above such as change in employment, illness or other reasons, and then one party would file an Order to Show Cause. Again, if both parties agree, then a court appearance would not be necessary. Likewise, if they do not agree, then the change would be decided by the judge in court.
Stephen Drucker is a Divorce Attorney in Los Angeles. continue reading...