If you are a parent who is in the process of going through a divorce, there are a lot of decisions that have to be made. Two of the most important decisions that will affect your children are their custody, and their educational opportunities once the divorce is final. Too many times both of these decisions are left up to a judge to decide. The educational environment, as well as the custody decisions that you may have already made may be in your child's best interest, but if you allow the court to decide, the court just may rule against you.
When there is a disagreement with the opinions, or positions of the parents, the court is forced to decide. The court's decisions often favor the philosophies that the presiding judge understands and believes in. The judge will often side with the parent who has similar views to those held by the judge. Every court is different, and opinions will vary from judge to judge. This is true even in the areas of education. Even when faced with evidence that the educational choices that have already been put into place by parents are working, the courts have been known to have their own opinion.
In Raleigh, NC the judge ruled during a divorce proceeding that the three children that were involved needed to be sent back to public school, although they had been homeschooled for the past several years.
In a case in New Hampshire, the judge presiding over the divorce of the Kurowski family, ordered that their ten year old daughter be returned to public school, although she had previously been homeschooled by her mother. This case went all the way to the New Hampshire Supreme Court where it was upheld. The high court stated that this order was valid, and was within the court's jurisdiction to make.
The same is true for custody. Once the judge hears all of the evidence, he or she will make an order determining where your children will live, and which parent will make the primary decisions unless you have decided this information before hand.
The Custody Battle
When two people split up and there are children involved, custody must be determined. There are three types of custody.
- Sole custody
- Joint legal custody
- Joint physical custody
In joint legal custody, the parents will share equally in making all of the decisions pertaining to the child. If it is joint physical custody, the judge may be asked to determine which parent will have primary physical custody, and when and where visitation will take place.
How The Court Determines Custody
Unfortunately, each case is very different and there is no cookie cutter method which will determine this. In each case there are several factors that the judge must take into consideration. Some of these are as follows:
- A history of physical violence in the home. This includes domestic violence, as well as violence against the child. If there is a history of either, the court will consider who the perpetrator was, as well as the outcome. The court will attempt to place the child in the safest environment.
- The parents' willingness to communicate, agree, and cooperate with the other parent as well as the court's orders. The court will consider if there have been problems in the past of either parent violating or not allowing visitation.
- The interactions, quantity and quality of time spent with the child prior to the separation.
- The mental and physical fitness of the parent seeking custody.
- The child's opinion, if they are of age and have the capacity to have one.
- The number of children, as well as their age.
- The socioeconomic status of the parents and the type of home that either will be able to provide the child.
- The educational opportunities being afforded to the children, which will include extracurricular activities, and the parent's willingness to continue these activities.
But what happens when parents disagree with the other parent's philosophies and practices? In the ideal world, both parents will be able to set their differences aside, and make decisions that are in the best interest of the child, but unfortunately, there are usually no ideal world scenarios.
You know your children the best. Why allow the courts to make these types of decisions in your child's life? As an adult we often have to agree to disagree, but your child's best interest should still always come first. Ask yourself if divorce mediation with your child custody lawyer could possibly work for you and your family. If so, try to sit down and make create a resolution of the issues within your divorce that would work best for all parties involve. If you are able to do this, your entire family will come out ahead.