During a child custody case, it's natural to wonder how to prove you are the "better" parent in court. However, it's important to know family court judges use specific criteria to determine child custody cases, which is often different than what parents think are important, such as "who takes them to music lessons, who shops for them, who cooks for them, and who knows the name of their teachers," writes Stacy Rocheleau, Esq. in a blog post for Right Lawyers. Meaning, rather than making decisions based on the quality of your parenting skills, good parental qualities in the court's eye are based on elements that best represents the best interests of the child. Keep these tips in mind to have the best possible outcome from your child custody case, according to these family law experts:
The Difference Between Legal and Physical Custody
First, some clarification around custody terms. Legal custody generally refers to, and is widely understood to "include a parent’s right to participate in major decisions affecting the child’s life, as well as their ability to communicate and participate with professionals and third parties in connection with a child’s education, medical care, and religious upbringing," writes Jason V. Owens, a family law attorney in Massachusetts, in a Lynch & Owens P.C. blog post.
On the other hand, physical custody refers to where a child lives, and is often what people mean when they say they're fighting for custody of their child, says the team at National Family Solutions. Then, there are differences between sole, primary, and joint custody. In a blog post for Legal Match, a website that matches clients with lawyers in their area, the author differentiates between these terms when referring to visitation rights, and to what extent a parent can make legal decisions for their children.
Courts Generally Prefer Joint Custody
Many courts tend to award joint custody when possible. Unless there are legitimate, documented reasons why the other parent should have some type of custody or visitation rights—it's likely that the courts will grant some type of visitation or shared parenting time. For example, "In Florida, there is a presumption that shared custody is in the best interests of a child," says Casey M. Reiter, Esq., who is based in West Palm Beach. "Florida courts are statutorily required to order that the parents share responsibility for a child unless the court finds that shared parental responsibility would be detrimental to the child," Reiter adds.
"Best Interest" Factors in a Child Custody Case
Remember, all the things that make you, in your mind, the better parent may not be factors the court will look at at all. "No matter the state, family courts always place a premium on the well-being of children. In matters involving custody, courts will consider the best interests of the child when reviewing or making any agreements or decisions about where a child will live, and what responsibilities and rights each parent will have," says attorney Robert Sparks of Robert Sparks Attorneys, PLLC. The courts consider "best interest" factors such as:
- The child's views and preferences
- The mental and physical health of the children
- Each parent's work schedule, as it relates to the time each parent is able to spend with their children
- Historically, how involved each parent has been in child-related activities, such as medical and education-related appointments, and extra-curricular activities
- Whether a parent can provide a safe, stable, and loving environment for the children
In Florida for example, Reiter says factors include "the demonstrated ability of each parent to provide a consistent routine for the child (discipline, homework, meals, and bedtime)," and the willingness of parents to communicate for the benefit of their child. Or in other words, "the demonstrated ability of each parent to communicate/inform the other parent of issues and activities regarding the minor child, and their willingness to adopt a unified front on all major child issues," Reiter says. And speaking of issues, Florida also looks at "the demonstrated ability of each parent to protect the child from the ongoing litigation," explains Reiter, who adds that this might include not discussing the litigation, sharing documents or media related to the litigation, and refraining from disparaging comments about the other parent to the child.
On the other hand, courts generally will not get involved when it comes to parenting styles and preferences, "unless there is a matter of great public importance that should outweigh the parents' fundamental right to parent," such as instances of child abuse, says Reiter, who points to the Fourteenth Amendment's Due Process Clause, which protects the right to parent (Troxel v. Granville, 530 U.S. 57 (U.S. 2000).
What Not to Do During a Child Custody Case
With that said, legal experts say certain behaviors may negatively impact your child custody case. If you're wondering how to prove you are a fit parent in court, don't:
Withhold Visitation or Parenting Time
Unless your child is in real and immediate danger (such as in situations of abuse or unsanitary living conditions)—in which case, contact the police—it’s usually best to stick to court ordered parenting times and frequencies, advise the team at Myers Law Firm in Charlotte, North Carolina.
Deny Child Support
If you cannot afford to pay the child support you owe, pay a partial amount and contact the court that issued the child support order to request a child support modification. Gather documentation, such as "termination papers if you lost a job; paycheck stubs if your pay has been cut; medical receipts if your health has changed; proof of increased expenses because of other bills you owe; and anything else you can put your hands on to show you are in trouble, not running from trouble," reads a Debt.org blog post.
Be Careless on Social Media
Writes Myers Law Firm, even if you think your social platforms are private, "the reality is that these accounts are completely public and anything you post on them could come up in court." To cover your bases, Kyle Lippard, an attorney based in Fayetteville, Arkansas advises not posting anything that could be used against you in court (or that you don't want to answer questions about), like photos of you intoxicated or negative statements about your ex-partner.
Anything you post on social media may be used in court.
Overall, says Christy Zlatkus, founder of Z Family Law LLC in Rockville, Maryland, if you or your ex-partner files for custody, get organized. "When your lawyer needs documents, get back to them quickly and efficiently. As you work with your attorney, you can seek out-of-court resolution options at the same time as you litigate. Consider mediation, collaborative law, lawyer-to-lawyer negotiation, or arbitration," says Zlatkus. "You are your own best advocate," Zlatkus adds.
If you need financial assistance, says Sparks, speak openly with attorneys you're thinking about hiring, as "some may offer affordable payment plans." It's also worth noting that "though nearly all family courts offer options and resources for “pro se” representation (or handling a case on your own), representing yourself in a legal matter with long-term implications is a drawback that could put you at a disadvantage, especially if your ex has a lawyer of their own," Sparks adds. Alternatively, your community may offer pro bono services and legal aid.