How to Win Custody in a Divorce (generally speaking)

How to win custody

The way to win custody in a divorce is by your actions prior to the judgment of divorce. Before a judgment is rendered in a divorce, there are likely going to be conferences, hearings and telephonic appearances with a judge (in a contested matter.) Chances are good that a pendente lite (interim) custody arrangement will be in place once the divorce action gets underway.

You want to make sure that this interim order is at least 50/50, meaning that either you get full custody of the children, or you get joint custody. No matter what the other side says, the judge is likely to try to keep things as they are in the interim arrangements in the final judgment unless there is a material change in circumstances, or unless one party proves themselves to be thoroughly unfit.

Unfitness can be a function of not letting your spouse have reasonable access to the children, not sharing the children. Often times because there is so much anger, spouses may try to use the children as pawns and bargaining chips. Or worse, as weapons. This is a mistake. Keep your children out of the anger you have towards your spouse because usually, they have nothing to do with the failed relationship.

The best way to win custody is to show that you are the parent most capable of acting in the best interest of your children.

Usually, that’s going to mean that you let them see their other parent.
Be aware that if your child is younger than 3 years old, the Court is likely going to award custody to the mother, all things held equal. That is because of the tender age doctrine–which is no longer valid but still seems to make sense to a lot of judges.

A mother is also more likely to get custody if she was a stay at home mother and the father worked. I guess it would also work vice versa since today there are a lot of stay at home dads. If both parents work, the scale still tips in favor of the mother, unless the judge is very liberal–however, a father is likely to be granted generous “parenting time.”

This is all on the assumption that the mother is in no way “unfit.”

However, if you are a father, be sure your attorney state on the record that you are also a fit parent. When the child gets older, you can then petition for a change of custody arrangements on the grounds that the child’s age is not so “tender” and therefore that you can handle caring for the child.

At the end of the day, remember that the court is concerned chiefly with the “best interest of the child.” Which parent can best provide that?

What is your track record with your child(ren)? Do you share interests with them? Have you a track record of caring for their physical, emotional and intellectual wellbeing? How old are your children? If they are over 10 years old which parent do they prefer? These are some of the factors the court considers in awarding custody. Do you love your children? Other than your words how is that manifested? Have you ever had to answer to ACS regarding the welfare of your children? Are there now or have there ever been allegations of abuse by you against your children? what would your children tell the judge about you and how you’ve treated them if they had a closed meeting with the said judge where you were not present?
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