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Wednesday, October 28, 2009

Determining Child Custody through Litigation

A child custody battle, whether as part of a divorce action or a separate action (generally after the divorce, where one of the parents is seeking a change of custody terms), can be one of the most contentious and unnerving forms of litigation you may ever experience.

The law does not favor either parent by gender, and each case is driven by the unique facts involved. The sole question to be answered in an initial custody action is, "What is in the best interests of the child?"

In an action to modify a prior custody ruling, there is an additional question to be answered: "What has changed since the prior custody order (or agreement) that would warrant a change of custody at this time?"

The courts will often seek the aid of unbiased health care and educational professionals to help them reach the best possible decision. Often, forensic psychiatrists or psychologists will be called on to conduct a thorough investigation and evaluation of each child and each parent involved in the custody litigation. This evaluation may include "significant others" such as grandparents or other caretakers who have contact with the children.

This investigation will attempt to determine:

  • Who is the better parent?
  • Which parent, if any, is attempting to exercise mind control over the children to the detriment of the other parent?
  • Which parent may be interfering with the other's visitation rights?
  • Any other factor that might have an impact on answering the question, "What is in the best interests of the child?"

The court will also appoint a Law Guardian, or attorney for the child, who is an independent lawyer charged with the responsibility of representing the child's interests, separate and apart from either parents' interest in the litigation. If the child is old enough and mature enough to express his own desires regarding which parent he wishes to live with, the Law Guardian will make that viewpoint known to the court. The Law Guardian will advocate for the child's wishes as long as he believes this viewpoint was not the result of parental brainwashing.

In most cases, if a child has reached the age of 13 or 14, his wishes will be factored into the court's final decision, provided he demonstrates appropriate levels of maturity for his age.

The cost of all professional fees, including the forensic evaluators, Law Guardian, and any other professionals appointed by the court, will be paid by the mother and father, proportional to their respective income and other financial conditions. These fees, in addition to each parent's own attorney's fees, can quickly escalate, resulting in an enormous financial cost to each party.

The litigation of a custody proceeding often also results in enormous emotional costs to both parents as well as the children involved.

For all of these reasons, it is in the best interests of everyone involved to try and negotiate a balanced settlement agreement crafted by the divorce attorneys for each parent so that the financial and emotional costs of litigation can be avoided entirely.


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