Divorce litigation occurs when two divorcing parties aren't able to come to an out-of-court settlement. Instead of deciding everything yourself and presenting a finished deal to the judge for him to approve before granting the divorce, when you litigate, you are turning to the court to make decisions on substantive issues for you. Sometimes, divorce litigation deals with the division of property and assets. Other times, divorce litigation deals with who will get custody of the kids. Still in other cases, the litigation addresses both issues. A good rule of thumb to remember is, the more you litigate, the more expensive your divorce will be.
Divorce Litigation for Custody
If you and your spouse cannot determine an appropriate way to share custody of your child or children, this issue will be litigated and a family court judge will decide. The specific rules used to determine custody vary by state, but in general, a judge will look at:
- What is in the best interests of the child
- What will promote continuity- who has been the primary caregiver
- Who can provide the best environment for the child
- How the child can have access to both parents
Unless one parent has been abusive, neglectful or otherwise done something that makes the court think he or she shouldn't be around the child(ren), courts will generally take steps to try to preserve the relationship of a child with both parents. This usually means some sort of visitation or shared custody may be in order in the vast majority of divorce cases.
Types of Custody Arrangements
The court can determine one of several potential custody arrangements:
- Shared or joint custody in which the parents have close-to-equal access to a child
- Primary custody in which one parent has visitation rights but the other parent has primary access to the child
- Sole custody, in which only one parent has custody of the child. The other parent may have no or limited visitation, or supervised visitation only.
Getting Custody
To get custody in court, you will need to convince the judge that it is in your child's best interests to live primarily with you. You can do this through witness testimony, character witnesses and other evidence that you are the child's primary caregiver or that you can provide the best and most stable home for the child.
Getting Help
If you are going to litigate custody issues, it is essential you have the help of an experienced divorce attorney. Your attorney can assist you in building a strong case so you can convince the judge that your child is better off with you than with your spouse.
