No matter what you feel about your other half, your children need both of you to fix the problem so they don’t feel neglected. It is sad when I witness a costly court battle over who will “win” the children. The battles are not so often in the best interest of the child, but centered on the need to hurt the other spouse one more time. The battle is not for the children. 

At the end of a costly custody battle, to have one parent feel that he or she has been “awarded” custody while the other parent has “lost” custody is not a good situation for either parent or the children. After the fire is out and a few years down the road, most will see what they did and feel guilty because Johnny is in therapy.   

What about the children? As a divorce professional, I enjoy working with parents who have the “best interest of the child” in mind. Many times I ask them to tell me about the kids. In the many years I’ve been doing this work, you can tell a lot about a person from that single question.

I’ve had strong people crumble and weak people stand their ground when asked about the children. A child custody case can be one of the most contentious forms of family law litigation. They are cases of “he said, she said”; “he’s bad, she’s bad”; “he doesn't care about the kids, she doesn't care about the kids”; “he’s not involved, she’s not involved.” 

The bottom line is this: in order to determine primary conservatorship the court will look to the “best interests of the child.” So shouldn’t you do the same?

Today I find most parents want joint conservatorship. In Texas and other states, joint managing conservatorship is a phrase which means the “sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions is awarded to one party.” In Texas, it is presumed that the joint managing conservator relationship is in the best interest of the child. It is a rebuttable presumption, however, with a finding of family violence.

In the joint managing conservator relationship, one party will have primary possession of the child. This is the person with whom the child will reside most of the time. This is often what is meant by the phrase “having custody.” 

On the other side is a sole managing conservator. If the joint managing conservator relationship is rebutted by one of the parties, then the court will appoint a sole managing conservator, who will have decision-making powers that the other conservator will not, e.g., the power to authorize invasive surgical procedure.

In the past few years, I have found this has only happened a few times, because as a general rule parents are looking for what is best for their children. Additionally, more parents are filing for divorce without attorneys after mediation. 
 
It is too bad, but a lot of parents don’t plan. In Texas, the law specifically states that both parties to a marriage shall have an equal shot at custody and that the courts can’t discriminate in awarding custody on the basis of sex. Keep in mind that “custody” in this context means actual physical and/or legal control and responsibility for a minor (child) under age 18.

In mediation, the mediator will work toward the “best interests of the child.” The idea of mediation is to guide parents through a finely designed parenting plan that both parents and the court system can embrace. 

The mediator should keep in mind that child growth and development is amazing and complex, so designing a plan is not a simple task. If parents are mindful of the issues at hand, a parenting plan that promotes healthy mental development can result.

Another issue is whether a child can decide with whom he or she wants to live. At around the age of 12 or 13, a judge will usually be willing to listen to the desires of the child, but he or she won’t be bound by those desires. In these cases, a mediator will try to get the parents to bring the child into the conversations about parenting and truly listen to what they are asking.

Active listening to your child will help with the parenting plan and will prevent a lot of hostility from the child toward the parent who would not let them be the young adult they are.