Engaging in a contested custody dispute is a last resort proposition because it usually produces two losers, and no winners. It may be warranted if you believe that your children’s current situation places them in serious physical or psychological danger ”not discomfort” but danger. Your sense of danger is discriminated from one of discomfort when the custody and access arrangements create serious problems for your child (not you!) by seeing or living with the other parent. If you feel the child will be exposed to physical or sexual harm, or to persons and behaviors that compromise the other parent’s ability to care for the child properly or make sound judgments about her needs, AND if the situation cannot be mediated or ameliorated with outside help, then you may need to contest custody or visitation. Examples include a parent who is using and/or dealing illegal drugs, having multiple sexual encounters which the child witnesses, or who is experiencing an abrupt shift in mental functioning, such as psychotic episodes which involve the child. In these cases, it could be necessary to fight with a parent who is not thinking or acting rationally in order to protect your child. Click here for an article on custody battles.
When you are determining whether or not to contest custody, you must carefully weigh the costs. There are your legal fees, your children’s legal fees, and fees for the court-ordered evaluator. Sometimes these costs can be greater than what you’d expect to pay for your child’s college education. However, the costs of a contested custody matter reach far beyond the literal dollar cost of your case. You and your children will feel stressed beyond human endurance during the process. Contested custody trials, and matters which are headed toward contested custody trials but which ultimately settle, can be extremely time consuming, emotionally exhausting, and damaging to a family unit. Do not underestimate the trauma that this will cause your family if you and your spouse are unable to reach an agreement concerning your children’s upbringing. If you are holding out on the schedule in order to win some other concession, financial or otherwise, think again. Ask yourself, “What makes it worth it? Are the costs to my ongoing relationship with my spouse and to my children worth holding out for? Will the schedule my spouse wants me to agree to inconvenience me, sadden me, or actually harm the children or me?
Courts are set up to assist you in reaching your own agreement about your children. However, when parents are unable to resolve their differences, the court will step in to assist. The “assistance” requires that your lives and past decisions get examined in minute detail, by you, your spouse, the evaluator, and the judge. You may have to testify about your spouse’s faults and shortcomings in the same detail. You will also have to listen while your spouse testifies about every perceived misdeed and defeated expectation, and every criticism he or she has of you, your parenting, and your relationship with your children. After that, you also have to listen while the court-appointed evaluator testifies about your strengths and weaknesses as a parent, and about how your behavior has affected the children during the divorce process. Click here for 5 tips on custody battles.
Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.
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