It’s no secret: divorces are stressful. Making this even more difficult might be also deciding who gets to have custody of your child or children.
According to longtime family law attorney Elizabeth Yang, if you are about to engage in child custody proceedings, there are several things that should be defined for you ahead of time.
First off, there are two different kinds of custody that the courts will be discussing, she said.
“There is physical custody and there is legal custody,” said Yang, president of Law and Mediation Offices of Elizabeth Yang. “Legal custody has to do with which parent can make the legal decisions for the child, such as what school they go to, what doctor they see, what procedures they get, whether or not they can get a passport, where they actually live. All those decisions are legal custody. And most of the time legal custody is jointly held.”
Joint legal custody exists to keep as much as the previous family structure in place as possible with both parents taking an active role as parents.
“The courts want the parents to talk to each other and co-parent,” Yang said. “But sometimes there is sole. That is when one parent has abandoned the family or is in jail or is not capable of making smart decisions for the child. Sole legal custody means one parent has the authority to make all the legal decisions for the child. They can move the child, they can take him to the doctor. They can make all the decisions without consulting the other parent.”
If sole custody is granted, Yang said it is not necessarily to the mother anymore, adding that many fathers now enjoy having sole custody of their child or children.
“There are many cases where the mother has abandoned the family or the father is a stay-at-home dad,” she said. “Gender doesn’t play a role in it anymore.”
And if a parent loses the right to legal custody, that doesn’t necessarily mean it will be permanent.
“Custody, in general, can be modified any time before a child turns 18,” Yang said. “Let’s say if one parent has a problem and drops out of the family’s lives for maybe five years, that parent can come back ask the court to be back in the child’s life, that everything is much better now in that parent’s life. The courts may not immediately give legal custody back, but they’ll usually do a step-up plan.”
That step-up plan is to see how much progress that parent has made over time and how committed he or she is to being a parent in the long haul.
“That usually involves some visitation first,” she said. “If that goes well, the amount of time and frequency of the visits might increase. That could step up to an overnight which could step up to weekends. If that person continues to be a good parent, they could get to the point where they gain legal custody back.”
The other type of custody, Yang said, is physical custody: where the child or children are going to reside. These arrangements can be easy to come by or can be rather thorny, depending on where the parents choose to live.
“If the parents live near each other — same schools, same neighborhood — it makes things a lot easier,” she said. “But sometimes parents move out of state for a job or something like that. In that case, you need to find a schedule that works. And it doesn’t have to be completely even. Maybe one parent has the child during the school year and the other on summer and holiday breaks.”
She added it is legal to live in another state from your former spouse and take the child across state lines as long as that is agreed upon ahead of time and that no court order is broken in doing so.
“If you take the child out of state, you probably need to give the other parent advance notice, maybe something like one month,” she said. “You need to give the itinerary of where you are going to be and going to stay. If all that is followed, it is usually OK. But if the court order says you can’t take the child out of state, and you do, that is when an Amber Alert is going to be issued.”
But the worst thing divorcing parents going through custody proceedings can do is talk poorly about each other in front of the child.
“Whenever you talk negative about the other parent you’re actually talking negative about your child,” Yang said. “You’re telling the child the tree they came from is a bad tree. The kid thinks, ‘How can I be a good person if the tree I came from is bad?’ Subconsciously, that is what it comes out to be.”
Persons who would like to discuss any aspect of family law can phone Law and Mediation Offices of Elizabeth Yang at (877) 492-6452 or log onto www.yanglawoffices.com.