January 24, 2024

When two parents separate or divorce, the primary concern is always child custody. In most cases, both parents have the best interests of the children at heart and are passionate about building and maintaining their relationship with their children. However, child custody can also be one of the most contentious areas of family law. Whether the concern is visitation, child support, shared time, holiday considerations, or moving to a new residence, the stakes feel high, and you need an experienced divorce attorney to help you navigate the process. Because child custody is discussed so often, there are many common misconceptions and it’s important to differentiate between what you may have heard and what is reality.

Misconception: Court is Always Required

Reality: You Can Negotiate Outside of Court with Your Attorney

When child custody disputes happen in the media, they are nearly always handled by a judge in a courtroom. However, the reality is that many child custody cases can be negotiated between both parents and their attorneys, with the final agreement signed by a judge. The reason that some child custody cases end up being handled in the courtroom is because parents cannot settle on a fair agreement that is best for the child or children involved.

However, while a court hearing is not always required for child custody, it is always recommended that each parent has an attorney to represent them during the process. There are several reasons for this. First, an experienced family law attorney will know and understand the law as it pertains to child custody agreements and will make sure that whatever split is proposed is legal. Second, child custody is often one of the most emotional situations during divorce or separation, and having an attorney there as an emotionally detached party can help both parties rationally make decisions that are fair and beneficial. Finally, neither party can claim that they were manipulated or otherwise coerced during the process.

Misconception: The Mother Always Gets Priority

Reality: Custody will be Determined on the Best Interests of the Child

This is a very outdated misconception, but one that many parents still think holds true, that the court will always favor the mother in custody agreements. Other misconceptions are that if one parent has had previous struggles that they will automatically be denied custody, or that the children will get to determine which parent has primary custody. The reality is that while all family circumstances will be considered when determining custody, there is no hard and fast rule that will favor one parent over another. The court will make the best interests of the child the top priority, and while that is usually the parent who is already functioning as the primary caregiver, that is not necessarily the mother. In general, the court does not want to cut a child off from a parent who has demonstrated that they want to be involved in a positive way in the child’s life.

Misconception: You Can Always Modify the Agreement

Reality: You Can, But Not on Your Own

This is where many parents can find themselves in trouble down the line. Once the separation has been initiated, a temporary custody agreement will be put into place, with a final custody agreement coming later in the process. However, children grow, jobs change, relationships evolve, and sometimes, the current agreement will no longer fit the current circumstances. In this case, one or both parents may decide to make changes that better fit their needs. While occasionally deciding to swap a day to accommodate travel, illness, or other circumstances may happen, making a larger change with the intention that this change will become permanent is not something you can legally do.

Parents are cautioned against making any changes, even simple or temporary, without getting them in writing. When the child custody agreement is signed, both parents agree to follow it, and if one parent can prove that the other has made unauthorized changes, this can hurt your custody rights moving forward.

It is understandable that custody agreements may need to be modified, but all changes need to be made through the proper channels.

Misconception: Child Support Dictates Whether or Not You Get Visitation

Reality: Visitation Can’t Be Withheld if You are Behind on Child Support

There are parents who may try to withhold visitation as a “punishment” for falling behind on child support payments, and many times, the parent who is being denied their visitation feels like they cannot argue without facing serious consequences. The reality is that child support and visitation are two different components of an agreement. Both need to be upheld – child support is legally required to be paid and visitation is legally required to occur – but they are not dependent on one another. Yes, it may seem logical that if one parent isn’t fulfilling their obligation the other parent has the right to do so as well, but this is not how the law works. If you attempt to withhold visitation without approval from the court, the parent withholding visitation can lose custody themselves. While you will be held accountable for back child support, it should never dictate whether or not you continue to have visitation rights.

Child custody can be a sensitive topic and it’s important to have the right information. Whether you are newly separated and developing a brand-new child custody plan, or you have been long separated and are looking for modifications, you need an experienced divorce attorney to answer your questions about child custody and to make sure that you are legally protected moving forward. Almost all parents are just looking out for their children and their needs, but whenever there is concern, having an attorney to help you through the process can help you navigate your reality as a co-parent in a positive way. If you have concerns about your custody agreement, or if you’re filing for divorce and in need of an experienced divorce attorney, contact my office today.