What can you expect when you’re getting divorced with kids in the mix? While the same legal steps are involved with or without minor children, the divorce process is almost always more emotional — even among couples with “amicable separations.” It helps to be prepared. Here are some tips to keep in mind as you ready and steady yourself for grappling with custody issues during divorce.
Divorce with Kids: The Process
Every state has a different procedure with unique terminology. Yet a generally expected set of steps is followed in most divorce proceedings. More than likely you can expect:
- Divorce filing: custody and child support are included in the filing. In California, a request for child support is included in the filing (without asking) in any divorce case involving minor children of the marriage.
- Emergency Orders (if applicable): if the children are at risk of physical or emotional harm from the other parent, you can ask the judge to protect them by establishing set boundaries, precautions and restraining orders.
- Mediation: always a good idea but mandatory in many states (like California) before the Court will make custodial orders. Because mediation is mandatory, it is provided free of charge by the county. Many cases settle outside of court even with a pending motion before the court. Sometimes having a neutral third party to assist can defuse a situation where emotions run high and two co-parents cannot reach an agreement on their own. Custody litigation is very polarizing.
- Divorce Settlement Agreement: if you are able to come to an agreement on child custody issues outside of court, you can include it as part of your settlement. The custodial provisions will always be modifiable if circumstances change or warrant a change in the parenting plan.
- Appeals to Trial Court decisions: if you or the other party disagrees with the court order, it can be appealed – although quite costly and often challenging to appeal because the original court has wide discretion to establish orders consistent with the children’s best interest. Obtain legal advice from an attorney specializing in family law and/or appellate law.
Put the Children First
Divorce is a significant change for everyone. Kids react differently to divorce, and it is important to keep them front and center in the decision-making process. The effects of divorce on children vary based on their age and temperament. Even when they are not expressing difficulties outwardly, children are little sponges that can soak up the stress of the divorce. They might be indirectly exposed to discussions about financial issues, cheating, violence, fraud, or other turbulence that they are not prepared to deal with yet. It is a good idea to consult with a counselor specializing in developmental or custodial issues to help with the changes your family is experiencing.
Understand the Judge’s Role
While widely considered in the best interest of children to reach an agreement outside of court, if you find yourself engaged in a litigation tug of war with your co-parent, keep in mind — the judge is there to consider the child’s best interests, and will place those above your or your coparent’s own interest in many circumstances. The parent better able to share the children will be considered the parent better suited for primary custody. Frequent and continuing contact with both parents is the legal standard to be followed as a “base line” but the court can deviate based on the best interest standard. See my blog post about factors considered by courts when deciding custody arrangements for more detailed information.
Children May Have a Say in Custody Decisions
Realize that depending on the age of the child, the maturity of the child or the jurisdiction of the case, children may be allowed to have input in custody decisions. Know what the laws are in your state and prepare yourself for this possibility. It is the strong preference of most judges not to have children testify in open court; children may be interviewed in chambers or through a custodial evaluator who is appointed by the court as an expert.
The most important first step to preparing yourself for divorce when conflict over the children is involved is to hire an experienced attorney specializing in family law with whom you feel comfortable. A good attorney will guide you through the process and take steps to ensure that both you and your children are represented in the journey ahead.