SHOULD PARENTS SEEK
CUSTODY OF THEIR CHILDREN
OR A PARENTING PLAN?
 In my
more than three decades of practicing law, I have been involved as an attorney in many, many full-blown
custody battles.
Rarely does either parent win a custody battle. While one parent or
the other generally ends of with "custody" of the parties' children, no one
"wins".
The enormous tension, animosity and hostility generated by parents warring
over who will "possess" a child creates a truly no-win situation.
Certainly the parent failing to obtain custody of the children did not "win".
Likewise, the parent who successfully obtained custody does not come out the
victor as many angry words and accusations were probably hurled at the opposing
parent in the process. I don't believe anyone would suggest that the children
should be "won" like the spoils of war.
There can be no question whatsoever that parents seeking custody of their
children are propelled by a well-intentioned parental desire to protect their
children from harm. However, in the process, do we subject those same children
to the agony of being forced to say, "I want to live with Mom" or "I want to
live with Dad"?
There are vast numbers of cases where a parent seeks sole custody of a child
because the other parent poses a threat or risk by reason of domestic violence
or abuse. However, in those instances, the abusing parent still retains the
right to visitation with his/her children. There are many, many people in prison
today for domestic violence or abuse who continue to have visitation with their
children. The right of visitation with one's children is something the Courts
today take very seriously and they will side almost every time against a parent
who claims "He/she shouldn't be allowed to see our children because . . . ."
While the Court will vehemently protect a parent's right of visitation,
because the driving force behind the family court system is the protect the
"best interest of the child", there are safeguard mechanisms in place within our
judicial system to assure the child's safety while still allowing the
non-custodial parent access to the child for purposes of visitation. These
safeguards include Visitation Centers where the children are dropped off by the
custodial parent and the non-custodial parent visits the children at the Center,
all the while under "sight-and-sound supervision" of the Center staff. In other
instances, the parent-child visitation can be supervised by a third party, such
as a friend or relative or even a social worker.
 By and large, children love
their parents -- both of them. When a couple reaches the point where divorce is
the only answer, the opponents oftentimes lose sight of the fact that they are
divorcing each other -- not compelling to children to pick the parent they love
the most.
While a husband and wife may divorce each other, they still share an enduring
bond in the form of their children. They will remain connected through the
children for years to come. That part of the relationship does not end with the
entry of the divorce decree.
Of course, we are speaking in broad generalities here. There are exceptions
to every rule. For the purposes of this article, we are addressing the usual
situation of a couple who can no longer live together as man and wife and the
children who are caught in the middle.
I do not pretend to be a psychiatrist or psychologist or family counselor. I
can speak, however, from the perspective of having served as legal counsel to
hundreds of people hoping to get a divorce and obtain custody of their children.
So many times, getting custody is simply a means of getting back at the other
spouse for years of abuse or neglect or an effort to control the other spouse by
controlling his/her access to the parties' children. But who wins in that
scenario? Certainly not the children!
In many European countries, when couples divorce, there is no mention whatsoever
in the divorce documents of "custody". Unlike the U.S., where the "possession"
of the children is set out in the terms of the Property Settlement Agreement, in
Europe the parties either agree to or the Court establishes a Parenting Plan.
In the simplest possible terms, Parenting Plans simply establish who will
spend time with the children and when and under what circumstances. Under this
principle, there is no question that the divorcing parties will always be
parents though they may no longer be husband and wife.
Several U.S. states have adopted legislation to mandate that child custody
orders be replaced with Parenting Plans -- Washington State, Oregon and
Tennessee, to name a few.
My office regularly uses Parenting Agreements or Parenting Plans to parse out
the issues relating to the children and to keep them separate from the financial
aspects of the divorce process.
More on the subject of Custody & Visitation:
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