There are few areas in family law that are more emotional and difficult than the area of child custody. Without exception, judges are far more concerned about making the best decision possible about child custody than in any other area of your divorce.
The judge does not know you or your children. If you want them to appreciate your side of the case, you are going to have to provide details about you and your family. You must be able to back up that information with as much independent proof as possible. Your thoughts, feelings, beliefs and opinions are all valid. However, the court must base its decision on genuine evidence.
Impact of Domestic Violence on Custody Matters
Eye witnesses to alleged domestic violence, psychologists' reports and specific medical opinions are all important examples of independent verification. They are essential in order to take any action as severe as prohibiting a non-custodial parent's visitation with his or her minor children. For instance, if your spouse has an alcohol or drug addiction, we need to know about his or her Public Intoxication or DUI arrests. If your spouse has physically abused you, we need to know about any Emergency Protective Orders you have had to obtain.
People are often embarrassed about allowing physical abuse to go on for years. Please don't be. This is very common. It will help all concerned if you tell the truth in this area. Your lawyer can help you get to the people who can help.
If domestic violence is an issue in your situation or if you have questions about domestic violence, please visit our web pages that address that situation specifically.
Other Custody Factors
If you or your spouse have been or are under a doctor's care for physical or mental health problems, your lawyer must know this in order to present it to the court in the proper way.
Your lawyer also needs to know the positive information about the roles you and your spouse take as parents. No one is "all good" or "all bad". It is not illegal to have an extremely disagreeable temperament, although there are times we all think it should be.
Finally, there are the children. The court also needs to know all you can tell it about them. The court must award custody and visitation as measured by the best interest of the children, not the best interests, fears or wishes of the parents.
What you and your spouse want to happen with the children is only one of the many factors the court considers. It is important to try to resolve the custody of your children by agreement.
If your case gets put into the Family Court program in Jefferson County, Fayette County or Northern Kentucky, you and your spouse will automatically be sent to mandatory mediation to attempt to work out child custody and visitation. Briefly, in mediation you will both sit down with a disinterested third person whom the court appoints as your mediator. He or she will try to help you and your spouse put your personal differences aside and agree upon a custody and visitation arrangement that is best for the children.
A unique aspect of this process is that nothing you say or do in mediation is admissible in court and, if you do not work anything out, you are not penalized. The only exception is admission of child abuse. Again, our advice to you is to work it out if you can.
CUSTODY
It is very important that you understand the difference between JOINT CUSTODY and SOLE CUSTODY.
Joint Custody
With Joint Custody, you and your spouse continue to share in decision making regarding the children's education, religious training, medical treatment and the like on an equal basis. It has nothing to do with the amount of time you will spend with your children.
Sole Custody
With Sole Custody, the sole custodial parent has all the say-so and the opinions of the other parent have no legal weight.
Current trends strongly disfavor sole custody as it is believed that such awards effectively strip the non-custodian of his or her parenthood. If you can't agree on custody, a mediator will probably be called upon to help you
Distinctions Between Joint and Sole Custody
There is another important legal distinction between joint custody and sole custody. This has to do with a custody fight that occurs sometimes after the divorce is final. In such situations, if a joint custody decree is in place, the "best interest of the child" standard is used to determine custody. Your lawyer will need to explain this dilemma to you in more detail. If, however, a sole custody order is in place after the divorce, the parent seeking the change in custody has the burden to show that the welfare of the child or children is seriously endangered. This is much more difficult to defeat.
VISITATION
The most common custody arrangement selected by the court is joint custody with the non-residential parent (that is, the parent with whom the children do not reside with the most) having visitation of at least every other weekend from 6 P.M. Friday to 6 P.M. Sunday, with a rotation of traditionally celebrated holidays (Christmas, Hanukkah, New Years, Thanksgiving, birthdays, etc.), all or a portion of the children's spring breaks and a prolonged uninterrupted visitation period in the summer.
The length of summer visitation depends mostly upon the age of the child. The older the child is, the longer the summer visitation, generally two weeks to a month. In addition, weekly Wednesday evening visitations are frequently awarded to non-custodial parents.
Time Sharing
Time sharing describes an arrangement through which both parents share the children. Time sharing can be varied as the families that use it.
There is no "right" schedule that fits all families or all age groups. Beware! Alienation of a child's affection for one parent by the other can result in a change of physical custody.
Divorce Education Programs
The Jefferson County Family Court features an innovative program known as "Families in Transition" or the "Divorce Education Program".
Parental separation and divorce are painful experiences for your children and will create many changes in their lives. Your children will likely experience feelings such as guilt, anger, embarrassment, disbelief, fear and grief. Your children will have many divorce-related questions:
"Why are you getting a divorce?"
"Will I ever see Dad (or Mom) again?"
"Did I do something to cause this?"
"What will happen to us?"
"What should I tell my friends?"
Your children will need answers to these and many other questions. Separation and divorce require you to adapt to rapid change, and there are a number of things you can do to make the inevitable disruption easier for your children. When you and your spouse are able to work cooperatively to meet the needs of your children, you decrease the likelihood of returning to court to resolve your differences. For this reason, an educational program to support you and your children has been established in Jefferson County, as well as in other Kentucky counties.
The court hopes to assist you and your children in coping more effectively with problems that result from divorce by requiring you to complete the Families in Transition Program ("FIT"). If your case is filed in Jefferson County Family Court, you and your children aged 8 to 16 must complete the entire 6-hour program.
The Families in Transition Program is designed for both spouses and their children between the ages of 8 and 16 to cope more effectively with problems that result from divorce. Outside of Jefferson County, the court may require you, your spouse and your children to attend divorce adjustment education. All groups are separate. Children's groups will range from eight to ten participants. The parent and the eligible child or children must register for parent-child groups. The other (non-custodial) parent may sign up for a parent-only group at the same or different site.
You are required to preregister for classes at any one of the Families in Transition sites, listed along with class schedules with your initial divorce pleadings. The fee for the Families in Transition Program is $100 per family ($50.00 per parent). Stipends to reduce this cost may be available with verification of income.
You will each be personally responsible for calling the site of your choice and scheduling your attendance within 30 days of the filing or service date of the divorce petition. In Jefferson County, you can call (502) 595-3618 for additional information. If you are outside Jefferson County, your attorney can provide you with the contact phone number.
TIPS FOR BETTER PARENTING
Some suggested guidelines for parents after divorce include:
- Put your children's welfare ahead of your conflict with former spouse. Avoid involving your children in any conflict with your former spouse.
- Remember that children need two parents. Help your children maintain a positive relationship with their other parent. Give them "permission" to love that parent.
- Show respect for the other parent. Do not make derogatory remarks to or about that person in front of the children.
- Teach your children about being a responsible adult by honoring your time-sharing schedule. Always notify the other parent if you will be late or cannot spend time with the children. Children may view missed visits (especially without notification) as rejection.
- If you are the non-custodial parent, do not fill every minute with the children with special activities. They need simple "at-home" time with you. They don't need constant entertainment. You are not a babysitter, so don't act like one.
- Do not use the children as messengers or spies. Don't pump them for information about the other parent.
- Strive for agreement on major decisions about your child's welfare and discipline so that you are not undermining the other parent.
- Use common sense in exercising your custodial rights. Follow the old adage "Don't make a mountain out of a molehill" and follow the Golden rule "Do unto others as you would have them do unto you."
- Don't send or collect child support through the children.
