Who “Wins” in a Child Custody Battle?

Who “Wins” in a Child Custody Battle?

By: M. Scott Gordon

 Often before a couple decides to get a divorce, they may choose to go through a period of separation during which they try to figure things out. This time may just be a break for some couples who later reconcile; however, for others this is the first step to either getting a divorce, or becoming legally separated. In this time of marital limbo, it can be unclear where the children of the marriage fit in.

Parental Rights before Divorce

When a couple is not divorced or legally separated, both parents have “equal” rights to their children. This means, for example, that each parent has the right to visit with the children, or take them out of the home without the other parent’s permission or presence.  However, these “rights” have not yet been established for either parent.  The father has just as much right as the mother to take the child out for the day.  We have seen where this situation can cause havoc, with one parent possibly withholding parenting time from the other.  It of course is preferred if each parent is open, allows access and exchange of the children and informs and coordinates the children’s plans with the other parent.  Without this cooperation, and with no court case or Judge to turn to, a panicking parent may call the police, but the police will often do nothing (unless there is a real emergency) without a Judge’s Order.  If the parents are cordial during the time apart, the children do not have to feel the negative psychological effects of a tug of war between their parents. When parents cannot get along, unfortunately each parent may feel the need to use the children against the other.

Joint Parenting Agreement

If the parents decide to get legally separated or divorced, they can come together and agree on a custody and visitation schedule that works for both the parents and the children. Once agreed upon by all parties, the agreement (known as a Joint Parenting Agreement and Custody Judgment) must be presented to a judge to be entered as a court order. Consulting an attorney does not mean that there will be an ugly custody battle. You should consult an experienced attorney to ensure that your agreement is well rounded and provides you with enough time with your children, and rights to decision making.

Custody Cases

In some cases, a custody agreement between the parents is not possible (at least at the beginning) and there has to be judicial intervention. The first step, after your attorney files a Petition with the court on your behalf, is for the parents to attend court ordered mediation.  Mediation is where the parents will meet with an experienced mediator in an effort to negotiate an agreement concerning their children.  Ultimately, if the parents can not agree upon custody, the court can hold a Trial on the issues of custody and visitation. The best interest of the child is the most important thing in a custody case; therefore, in cases involving custody issues, all Chicago area parents are required to attend court approved parenting classes. These classes are designed to equip the parents with the necessary skills for effective communication between them and their children.

In many respects, it does not matter which parent files first for divorce or custody. It might matter though in terms of getting a temporary custody order in a situation where you want to stop the other parent from leaving the state with your children. A parent might try to leave the state with the children if they want to ensure the other parent never gets custody or visitation, although this is not appropriate.  Under the Uniform Child-Custody Jurisdiction and Enforcement Act, which is recognized throughout the United States, decisions on child custody have to be decided in the child’s home state, which is generally the state the child has lived in for the 6 months before the case, with few exceptions.

Contact a Chicago area Attorney

If you have questions about child custody and what rights you have to see your children pending a divorce, contact the experienced attorneys at M. Scott Gordon & Associates for assistance.