Charles R. Hofheimer, PC


Nothing can be more costly or emotionally draining than an all-out custody battle. Long gone are the times when a mother could expect to be awarded the custody of her children simply by virtue of being their mother.

Ex-husbands, grand parents, and even in-laws are now making strong cases against natural mothers for the care and custody of her children. Custody is a major issue in divorce now, and a very serious issue for all mothers in particular.

What exactly is custody?

Custody is not a very complicated legal term, but the awarding of custody in whole or in part to either parent can be an absolute nightmare that can consume years of in-court time and put you in debt for the rest of your life. When you were living with your spouse, you both had custody of your children. They were yours to love and cherish, and you were each legally and morally responsible for their care, feeding, and general welfare. Both you and your spouse had the authority to divide up those responsibilities any way you wanted. All that changes when you get a divorce.

Once you get divorced the court decides how much each of you is to contribute to the care of your children. The court also determines with whom the children will live and to a greater or lesser extent how their lives are to be run. Custody may be awarded to one parent or both in a variety of ways. Generally though, only one parent is given actual physical custody of the children. The custodial parent then becomes responsible for the day-to-day living activities of the children.  The children live year-round in that parent's home, but the non-custodial parent will have certain rights of visitation and will also be partly financially responsible for the children's needs. The theory behind this is that it brings greater emotional stability to the children's lives and makes each parent responsible for the financial burden of raising one's children. 

Preventing children from seeing their non-custodial parent is treated with great disapproval, unless there are extreme mitigating circumstances. In certain unusual circumstances (e.g. abuse or neglect of children, etc.) the court may grant sole custody to the non-offending parent. However, complete termination of one parent’s rights is usually very difficult to obtain, even in the case of domestic violence or suspected child abuse. Giving one parent primary custody (physical custody) and the other secondary custody (by way of visitation) is the norm.  If both parents are agreeable, joint physical custody is also a possibility.

What is the difference between joint legal custody and sole legal custody?

One frequent misunderstanding is that a parent with sole custody can determine when and if the other parent sees the children. Sole custody does not prevent or affect visitation rights. Parents with joint legal custody must discuss and agree on major decisions affecting the children’s lives. Sole custody gives the custodian the right to make unilateral decisions on such issues as education, religious upbringing, and elective medical procedures.

What standards do the courts use to determine who gets custody of my children?

In general the courts use what is euphemistically called the best interests of the child as their guiding light. The judge weighs the evidence each parent presents before him and then determines whether the children’s best interests will be served by living with the mother or the father. To say the least, it’s a very subjective process.

What other factors enter into the judge's decision?

No two custody cases are the same, and no two judges think alike.  Judges must consider many factors in making a custody decision.  Each individual judge may place different weight on:

Are you saying I might not get custody of my own children?

That's a real possibility, especially if your spouse has a lot more money than you do. With greater financial resources he can provide a "better" home and hire the legal fire power to convince the judge of this. However, you as a mother have usually been (up to now at least) the child's principal care-giver and that counts a lot too. Statistics show that moms in uncontested divorces will most likely get custody of their children. But in contested divorces in which the father is asking for custody, the father will more likely get custody. 

Don't I have to be an "unfit" mother before they can take away my children?

Only if the state is trying to take them away from you. If it's the children's father, all he has to do is prove that living with him will be in the children's best interests.

Can't my children say who they want to live with?
The court will consider the reasonable preference of a mature child (usually 12), but the court is not required to order custody according to the child’s wishes.  Additionally, if the court thinks a parent is coaching or coercing the children to “pick” that parent it hurts that parent’s chances of winning custody.

Just how important is the status quo in a court's custody decision?

This probably counts for more than anything, especially when a child seems to be well adjusted. Courts are not likely to disrupt an acceptable situation in favor of an unknown one. All things being equal, maintaining stability is paramount in their minds.

Will the court keep my children together?
Courts are generally reluctant to split siblings, even if the parents request it. Compelling reasons must be given to the court in order to do this.

If I remarry or my spouse remarries, will that have any effect on the court's custody decision?

The parent who does not have physical custody will need to prove that the new marriage creates a significant change of circumstance so that the best interests of the children would be served by a change in custody.

If my husband abused me, won't that affect the judge's decision to award custody?

Absolutely, but not necessarily the way you would expect. The tenor of the times allows judges to bend over backwards to allow either parent to win custody of their children. If you are making allegations of physical, or most especially sexual abuse, you had better have rock-solid evidence against your spouse.  Otherwise the judge may believe you are trying to use his court to punish your spouse. As ludicrous and tragic as it may seem, suspected and convicted child molesters have in increasing numbers been awarded custody of their children, even when the other parent had been proven to be a fit and proper parent.

If I get custody of my children, can I move or take a job in another state?

Relocation is a big issue in custody cases today. Relocation is a change in circumstances which may warrant a change in custody. You must be able to prove that the relocation is in the children’s best interest (not yours), and that it will not impair the children’s relationship with the non-custodial parent.

How can I get an existing custody order changed?

If it is a final custody order, you must be able to prove that there has been such a significant change in circumstances that the best interests of the children will be served by a change in custody.

What about "parental kidnapping"?

Parental kidnapping occurs when a parent takes a child without a court order allowing him or her to do so. It is a serious offense,,, and the "kidnapping" parent risks losing custody and criminal prosecution.

Do mothers have to pay child support?

All non-custodial parents are required to contribute to the support of their children.

How are child support payments determined?

This is too complicated to explain in a web site, but a formula is used based on the relative gross incomes of both parties.

Do I have to let my ex-spouse see my children if he refuses to pay child support?

Yes, visitation and child support are two separate issues.  You must pursue child support through the courts and comply with visitation orders.

Can I stop child support payments to my ex-spouse if he refuses to let me see my children?

No, you must pursue your visitation rights through the courts and comply with child support orders.

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