Q & A on Child Custody

Q & A on Child Custody

with Susan Reach Winters

Here are my answers to questions posted by firstwivesworld.com bloggers:

From Megan Thomas: I cannot afford to pay the mortgage on my own, so if I leave my husband I'll have to get a tiny apartment. Can this be used against me when it comes time to deal with custody issues?

Megan: When deciding custody issues, Courts look to what is in the best interests of the children, not who earns the most money or who can provide better housing or monetary advantages. However, if you are the primary caregiver to your children, then maybe you should stay in the marital home and seek to have the Court order your husband to move out. While the divorce is pending you can make an application to the Court to have your husband continue to pay his share of the bills or mortgage until you have worked things out. You are also entitled to your share of the equity in the marital home, so maybe you can afford to buy him out and stay there with the children, or alternatively he might agree to defer the home sale until the children are older. You may be entitled to alimony and child support which would assist you in being able to pay the mortgage. My advice is not to rush into anything without considering all the options.

From Elaina Goodman: I'd never consider taking my kids' dad out of their (almost) daily lives. We share custody, and neither of us would have it any other way. Still, I wonder even if their time is split evenly with both parents, does it benefit them for one parent (me) to have full custody i.e. decision making power?

Elaina: While it might be easier for one parent to have all the decision making authority, Courts are reluctant to grant this unless one parent is unfit. Each parent does have full decision making authority on routine, everyday matters when the children are in their care e.g. what they eat, when they will go to bed, etc. However, when it comes to major decisions about health, welfare and education e.g. which high school a child should attend or whether to consent to major medical treatment, then both parents should have the right to be consulted and participate in this. It does mean that potentially you might not agree and will need to have the Court decide, but I suspect you would not want to be cut out of major decisions about your children if all the decision making power was given to the kids' dad instead of you.

Question: I separated from my husband a couple of months ago. I want to move to another State where there is more job opportunity for me. My ex-husband says that I'm not allowed to leave the state with the kids without his permission — and he won't give it to me. What can I do?

Answer: You will need to make an application to the Court to approve the move in the absence of your husband's consent. Each State has different legal standards and requirements that need to be applied to the unique facts of each case so it is hard to generalize. However, if you are not already divorced, then the possibility of a move to another State may lead your husband to contest custody. The outcome will depend on how involved your husband is in the lives of your children, whether there is a good faith reason for your move, whether your children will be worse or better off by the move, and what is in their best interests. The Court may need to appoint a mental health professional to interview the children and the parties, and this can be costly. Even if the move is approved, you will need to propose a parenting time plan that allows your ex-husband to see the children and possibly have more time with them on holidays and school recesses. Think carefully about the move, and consult with an experienced family law attorney who can advise you on the legal standards in your State that have to be met in order to obtain the Court's approval.