I am thinking of separating, but how will Custody work? Many people who are planning to separate from a spouse or significant other hesitate because they are afraid of how it might affect child custody. These concerns are valid, and absent an agreement between the separating parents, there is going to have to be intervention by the child custody courts. Sometimes people separate abruptly, and take the children with them. This approach to child custody can be very successful in the short run, but can often be used by the opposing parent to demonstrate that someone is unwilling to share custody and /or can’t be trusted to put the child’s best interests first. Take two examples:
Both of these parents could have handled the custody issues better. Each should have found an attorney and / or prepared custody paperwork prior to separation. However, our father in the second example will be able to reasonably explain his actions, and why he perceived a safety issue. If the custody court agrees with him, he won’t be punished, and even if he was over reacting, he is unlikely to be penalized for his mistake. The Mother in the first example will now have to work to how the Court that she actually had the child’s best interest at heart. The problem is, she has no safety concerns, and he only fear about telling father about her or the child’s location was probably so he wouldn't “take” the child. The father’s attorney should be able to argue that this shows mother does not have the child’s best interest at heart, ad that he is a more fit parent in this regard. Of course, how a court ultimately sorts out any case will depends upon all of the factors and circumstances, not just who left when, and did what during the initial separation. Obviously getting an agreement in place first, or filing court papers before or simultaneous to leaving will signal you do have the child’s best interest at heart. Further, consulting with a lawyer can help you get a better understanding of the consequences of leaving with or without the child in your particular circumstance. So, when you do decide to separate, remember to try and reach an understanding if possible, even if its only a short term one. If you do leave without discussing the matter, do so after consulting with a lawyer, and even if you perceive an emergency or safety issue such as partner abuse or drug addiction, go to court as soon as possible. If you want to truly protect your child, getting a court order is the surest way. If you have to separate, and you quickly involve the courts, you will increase your chances of keeping primary custody or being awarded substantial visitation. Absconding with the child, not giving new contact information to the other parent, and denying visits not only hurts the child, but your chances in custody court as well. |
Use our Free Child Custody resources to learn more. Each article or vignette was prepared by an attorney, and explains some general strategies and ideas for parents with custody issues. Of course all 50 states have different laws and ways of applying the principles of child custody, so you should familiarize yourself with your state's particular custody laws and rules. |
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Considering a Custody Case? Call (877) 257-9050 to Talk to an Attorney
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I’m thinking of separating, but how will Custody work?
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Uniform Child Custody Jurisdiction and Enforcement Act (1997) (original text)
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