Child custody is often hotly contested during a divorce; it refers to the act of taking physical guardianship of a child or children, most commonly during the dissolution of the marriage. Because children cannot physically live with both parents all of the time, the court will usually grant one parent the right to care for the children the majority of the time, while granting the other parent visitation rights. If you are currently in the middle of divorcing and want physical custody of your children, here is how to get sole custody:
Understand the Difference Between Physical and Legal
There are two types of custody: physical and legal. Physical custody is what is usually meant by sole custody; that is, one parent takes will be given the right to care for the children physically, most of the time. Legal custody refers to the right to make medical and legal decisions for the child, and make decisions about the child's life. Regardless of who takes physical custody, both parents are usually granted split legal custody, and they must agree upon any decisions regarding the child.
Apply for Custody During the Divorce Proceedings
As part of filing for divorce, both parents are required to denote who will be taking custody of the children after a divorce. It is not uncommon for both parents to disagree and apply for sole custody; in these cases, the judge will decide who gets physical custody of the children.
To begin the application for custody, simply mark the box in your divorce application that asks for you to take custody. Keep in mind that this does not automatically grant you those rights; chances are, unless your spouse agree that you should take custody, you will be fighting the matter out in court.
Compile Your Evidence for the Hearing
At the divorce hearing, both spouses will be asked why they feel they should be granted sole physical custody. You will need to provide evidence showing why you would be the obvious choice. To do this, consider the circumstances:
If you have been a stay-at-home parent for the majority of the marriage, and your job was to care for the children at home, you will most likely receive custody. If you were the parent who went to work to support the family, you likely won't. The idea behind this is that children are already used to being care for by the stay-at-home parent, and the judge will want the children to stay in the situation they consider normal. You will need to prove that you were the stay-at-home parent, which shouldn't be difficult at all unless your spouse is trying to prove that you actually were the working parent.
In less than 5% of custody matters, it is the working parent who gets full custody. This happens when the spouse is able to prove that the stay-at-home parent is unfit to continue caring for the children. This will not be an easy thing to do; heavy, illicit drug or alcohol use, neglect, or child abuse are about the only reasons custody would ever be taken from the stay-at-home parent. Even if you can prove one of these three things, you would need to prove it has been going on for an extended period of time and that the children are in actual and factual danger to be successful.
Argue Your Points at the Hearing
Once at the divorce hearing, the judge will ask both parents why they not only believe they should have full custody, but why they believe the other parent shouldn't. Depending on the child's age, they may also be asked for their preference; generally, children over the age of 13 can request to go with one parent. However, the judge does not weight their decision heavily on child preference. The reason behind this is that while the child may prefer the other parent because of lax or no rules, lack of discipline, and showering of toys and gifts on the one parent's part to gain the child's preference, that is not usually the best circumstance for the child to be in. The parent who can show they are only interested in the child's well-being and not their undivided loyalty, among other factors, will be the one who gets custody.
Stop and Think Before Contesting Custody
Even though you as a parent will obviously want your children to be with you, think about what is truly best for them: you do not want to take a child away from the parent who has been staying at home with them their entire lives. Besides, if you are the working parent, consider the fact that you will likely need to put your child in daycare when they could be spending their days with their other parent instead. Is that really a situation you want your child to be in?
Other things to consider are: is your child still being breastfed on a daily basis? If so, then they should be with their mother for the majority of the time. Are your children in school yet? If not, then they should stay with the parent who is able to stay home with them during the day. Unless you honestly believe that your soon-to-be ex-spouse is in any way harming or neglecting your children, you should not be contesting custody, for your children's sake.