The Contested Child Custody Case

One of the most tension-filled and agonizing aspects of a divorce is the contested child custody case.  It is a part of the parenting responsibility that few people foresee when they bring children into the world.  You never thought that the welfare of your children would be determined inside the walls of a courtroom.  If you are in this situation, there are many things to consider.

DON’T USE YOUR CHILDREN AS PAWNS

Your children are in the middle of your divorce by their mere presence.   There are certain things that you should avoid that will hurt your children and hurt your case.  Don’t communicate to your spouse through your children.  Do not share the details of your case with the children, especially if they are very young.  Never turn one child against the other, or against the other parent, in order to gain his or her affection.  Children are conflicted enough as it is without one parent taking actions that exacerbate the situation.  If your case goes to trial, it may become apparent if one of the parents, or both, has attempted to manipulate the children in any manner. The parent who is guilty of manipulation will have a black mark against him or her in the judge’s mind.

THE ONE BASIC CUSTODY ISSUE

A contested child custody case can be very complex, but it often boils down to just one standard:  What is in the best interest of the children?  While one or both parents may think they are the focal part of the case, the judge cares about the children, first and foremost.  The evidence should all be directed toward that standard.

Many factors may reflect a party’s parenting skills or lack of skills and thus be relevant to determining the children’s best interests.  One party may be more nurturing than the other but may have an alcohol problem that reduces his or her ability to be a good parent.

PROVING YOUR CASE

Once you know the standard, how do you prove your case and show what is in the best interest of your children?  The best method is to gather testimony from disinterested people who have observed you and the other parent with the children.  Family and friends are fine, but they will often testify in favor of the parent they know, or like the best.  Mutual friends and third parties with no bias (teachers, coaches, extracurricular activity leaders, etc.) are often favored by the court.

Be prepared to show that you are involved in the lives of your children.  Do you know their teachers, friends, food preferences, favorite classes and activities? Your case will be hurt if the other parent is always the one attending the school conferences while you are at work or spending time with your friends.

Once the divorce is filed, one parent may attempt to do more with and for the children than before to impress the court.  This rarely works.  The case will turn on each parent’s history as a parent and not what they do in the months leading up to trial.

The court will want to know how you propose to handle any situation that your children might have—physical, emotional, educational, etc.  Your employment may also have an impact on the case.  A court will want to know who will care for the children after school, during school holidays or on other occasions when your employment may present a conflict.  These are but a few things that you will have to prove to the court to bolster your custody claim.

A CHILD’S CHOICE

In Illinois, children 14 and older may choose which parent they prefer to live with.  However, the judge has the final word and can overrule the child’s choice if the judge believes it is against the child’s best interests. Judges will be especially sensitive to the possibility that the child’s choice was coerced by one of the parents.

Parents sometimes want a child to testify in the judge’s chambers.  Parents should think long and hard about this tactic.  Whatever may be gained in the short term may bring about emotional scars to the child in the long run.

GUARDIAN AD LITEM

A guardian ad litem (GAL) is an individual agreed upon by the parents or appointed by the court whose sole purpose is to look after the best interest of the child.  Typically a specially trained family law attorney, the GAL is the children’s representative.  He or she will get to know the children in their home or homes.  The GAL will confer with friends, neighbors, teachers, doctors and anyone else who can provide a perspective on what will be best for the children.  The GAL will provide a full report to the court to assist the court in its final determination.  While the report is not binding on the court, it is often given great weight.  The parties are expected to cooperate fully and should be aware that there is likely a fee for the GAL to do his or her work.

MEDIATION

Mediation is a procedure that is always encouraged and often required.  A mediator is not looking to give credit or assess blame, or to decide the issues in the case.  He or she is only trying to bring the parents together for a compromise that will resolve the case without the time, expense, and emotional stress of a trial.  You should enter mediation with an open mind, receptive to new ideas.  Mediators are often trained in problem solving and bringing new and creative solutions to the table.  Take this part of the process very seriously.

Custody litigation involves the most important part of your life—-your children.  It is more than just a win or a loss in court.  It will determine the welfare of your children for their entire lives.

For help with a contested custody case, or any other divorce-related issue call the Stetler Law Group at (815) 529-4554.