Parents considering divorce or legal separation face some very unique and unsettling challenges. While you manage the complex emotions of divorce, you must also make major decisions that will greatly affect your future and the future of your minor children. The main parenting issues to be addressed are: parenting time, legal custody (known as legal decision making authority), and child support.
After divorce, spouses transition to their new roles as co-parents. Shifting roles can be very challenging. Spouses share a history, and they usually have different perspectives about their past relationship. Divorce often involves some negative emotions or hurt feelings between spouses.
Some parents decide that they would prefer sole legal decision making authority, rather than agreeing upon joint custody. Parents should understand all of their options, and the possible implications of those options, before making any final decisions. Certainly, there are specific circumstances that call for one parent to maintain sole legal custody. However, in many cases, sole custody can be a detriment to parents and their children. To help parents contemplating an Arizona child custody case, there are seven considerations as to why you might not want to pursue sole custody.
1. Your Motivation is Negativity Toward Your Spouse
Before making any important decisions regarding legal decision making authority, begin by mindfully questioning your own motivations. It is normal to have some negative emotions toward your spouse during divorce, however, your children’s best interests should remain your primary motivator. If your honest internal assessment reveals that your pursuit of sole custody is even partially motivated by the negative impact it may have on your spouse, it is wise to pause before making any decisions. You may not change your mind, you should thoughtfully consider all options before moving forward.
When feeling angry or hurt, “pausing” may not come easily. Remember that your emotions are always evolving. You will not always feel the strong emotions you are experiencing right now. Mindfully processing your thoughts, feelings, and emotions will help ensure that your primary motivator is your children’s best interests. Divorcing spouses often find it helpful to talk with a trusted friend or seek out the help of a counselor or therapist. Genuine support from people you trust is priceless.
An experienced divorce mediator can help you explore the potential positive and negative outcomes of your choices regarding legal custody. Mediation helps parents collaborate and eventually reach agreements, even when it seems they disagree on major topics or disapprove of one another’s lifestyle or living situation. Parents who choose family mediation rather than litigation, find creative solutions to each and every issue of divorce. Mediation helps you support your child’s adjustment to their changing family dynamics.
Family law attorneys can help you better understand your options, help you make custody decisions, and give you legal advice.
2. Unintended Relinquishment of Control
Ironically, by pursuing control through sole custody, you could end up losing control.
A lengthy and stressful court trial is probable in cases where one parent pursues sole custody. In the absence of extreme circumstance—such as domestic violence, child abuse, legal issues, or substance abuse—sole custody of a child is highly unlikely and rarely granted. Arizona courts overseeing child custody cases are advised and guided by research which indicates children benefit from having a relationship with both of their parents.
In divorce mediation, parents work together to create unique, personalized agreements to best meet their needs and the needs of their children. You can stay in control of the terms of your parenting plan through mediation.
Parents turn over decision-making power to a judge when they refuse to come to the mediation table. In litigation, a judge bases decisions upon what they hear from attorneys, which is usually an extreme or distorted depiction of what is true. A judge may order psychological evaluation of parents and children upon which they will base their decisions. These “psych-evals” can be skewed and counterproductive.
As professional divorce mediators, we believe that no one understands the needs of your children better than you do. Are you facing an extreme circumstance that requires sole decision making authority because it could be harmful to involve the other parent in major medical, educational, or religious decisions? If not, carefully consider the potential impact that pursuing sole legal custody could have on your children.
3. It Might Not Mean What You Think It Means
Sole legal custody does not mean that you will be the only parent that will have contact with your children. Legal custody is different from physical custody, known as parenting time in Arizona. Even when there are extreme circumstances, such as drug abuse, a parent will likely be granted some visitation rights. Although supervised or unsupervised visitations may hinge upon certain required provisions, such as drug testing, it is likely to be granted.
Family courts prioritize children spending time with both parents based upon child development theories which indicate that children benefit from spending time with both of their parents. A grant of sole legal custody will not necessarily affect parenting time. It only means that the parent with legal custody will make major medical, educational, and religious decisions related to children.
At the conclusion of a long and devastating court battle, children are still likely to spend time with each of you.
4. The Effects of Conflict
Research confirms that divorce is not necessarily harmful to children when parents maintain a healthy, conflict-free co-parenting relationship. Many experts agree that it is better for parents to separate than to consistently expose their children to the high conflict levels of their marriage. Remember, divorce doesn’t cause the damage, it is the conflict during and after divorce that does.
When parents expose their kids to marital conflict it often causes children to experience uncertainty, instability, and self-doubt. The pursuit of sole custody is likely to cause some disruption to your lives. Litigation may include invasive home evaluations and multiple court appearances. Parents will testify against one another. Children may be pitted against their parents. Does the benefit of possibly securing sole legal custody outweigh the potential harm to your children? The answer depends on your personal circumstances.
The Aurit Center for Divorce Mediation prioritizes the well-being of children in each and every case. We can help you keep conflict low and reach creative agreements, personalized to best meet your needs. Additionally, your parenting plan can be developed to establish boundaries and guidelines to ensure that both of you feel the agreements are fair and support the best interests of the children. Concerns are discussed openly, and solutions are arrived at collaboratively.
5. There Is Another Option
Legal decision making authority in Arizona means that parents may be granted authority over decisions regarding certain aspects of their children’s lives. Joint legal decision making authority is most often agreed upon, or ordered in court. This means parents jointly make decisions regarding major medical, educational, and religious issues.
In mediation, parents can agree to split up joint legal decision making authority. For instance, parents may agree that Mom has the “final say” for major decisions involving a child’s medical treatment, while Dad has the “final say” regarding the child’s education. Parents who choose this option must still receive input from the other parent. In some cases this works very well, while in other it can lead to increased conflict.
Parents also have the option to predetermine certain decisions to avoid a fight for sole legal decision making authority. If there is disagreement about who will make major educational decisions, parents in mediation can proactively agree upon specific boundaries related to the children’s education, which can create a framework for any educational decisions.
For example, parents in mediation can agree that, “the children shall remain in the XYZ School District, unless otherwise agreed.” Parents could alternatively agree that the children’s school shall remain within 10 miles of a specific address. Reaching these agreements can eliminate the need for a sole legal custody fight, because it limits each parents authority with a predetermined agreement. This reduces fear of the unknown.
6. Money May Be More Well-Spent On the Children’s Future
Sometimes a parent must pursue sole custody to protect their child, no matter the expense. However, under normal circumstances, parents should consider the financial cost of a lengthy trial before moving forward. An initial retainer for an Arizona attorney in Maricopa County can be $5,000 – $15,000. When custody is contested, protracted litigation is likely to result in legal fees exceeding $50,000 per spouse. High conflict cases that drag on for more than a year can exceed $100,000 in legal fees. Parents are wise to ask themselves if the money would be more well-spent preparing for their child’s future.
Family mediation should be pursued in the vast majority of cases, even when it seems there is little possibility of resolving the issues out of court. Parents currently engaged in a court battle can begin mediation at any time to develop their own custody orders.
7. Trouble Down the Road
. When sole custody is warranted or necessary, it will likely change a child’s life for the better. However, when it comes about for misguided reasons, the impact can cause irreparable harm. While legal custody should not affect parenting time under Arizona law, it will affect the children’s relationship with each parent.
Sometimes, this can backfire on the parent who maintained sole custody. As the children grow older they may ask “why?” they were not allowed to see one parent as frequently as the other. They may will question why one parent makes major decisions without regard for the other parent’s thoughts or feelings.
In extreme circumstances, your children may respect you for doing whatever was necessary to protect them from harm. However, if you seek sole custody for the purpose of getting back at your spouse, it will most likely spell trouble down the road.
In the end, parents are wise to follow their conscience and remain motivated to do whatever is in their children’s best interest. The Aurit Center for Divorce Mediation aims to light the path forward, beyond divorce, ensuring the health and well-being of children and families. For divorcing parents, mediation offers the opportunity to remain in control and to develop personalized, unique agreements while keeping conflict as low as possible.