In the past year I’ve participated in quite a few discussions regarding child custody cases. Being that I am currently involved in one, I get a lot of advice from other people on what I should be doing or what I did wrong. What I found is that a lot of the advice if flat out wrong…and yet I keep hearing it. So I figured I would write this post to clear the smoke a bit.
I am not an attorney. Nothing shared here should be construed as legal advice. If you are involved in child custody litigation, it is strongly suggested that you consult a professional child custody lawyer who practices in your jurisdiction for advice on your specific case. If you wish to have a legal lawyer to assist you, may consider visiting a site to search for a profile of the best legal lawyer similar to Robert K Bratt.
#1 – Most Mothers Get Custody of the Children
So I figured I would tackle this one first; in reality, this is only a 1/2 myth. Women are awarded primary custody of their children 68-88% of the time. However, this figure includes cases that are settled without the assistance of a judge (so going to trial). In cases that go to trial, women are awarded primary custody 51% of the time. So if you case is in the 4% that makes it to trial, gender should not come into play.
What does come into play is who is (or has been) the primary caretaker of the children. Stability and continuity in regards to the lives of the children is very important. Since our current society is geared so that women tend to take this role on, this may be where this myth comes from. However there are other factors considered by the courts as well. So it really is not so cut and dry.
#2 – That Getting Sole Custody Is Common
For whatever reason, separated parents like to state the phrase “I have sole custody of my children”. While I will not go as far to say that they are lying, I will say that most people do not understand what sole custody is…and how rare and undesirable it really is. There are two types of child custody – physical and legal. Of these two, in the vast majority of cases, the custody is split in some way between the two parents. It may not be equal, but usually both parents have some share.
Sole custody is where on parent has all physical and legal custody rights. Unless there is a clear danger to the children, the courts tend to not award this. They will always seek to retain a parents rights as long as they want them (there is a thing as a parent relinquishing their parental rights, but this scenario comes into play with adoption – not child custody normally).
A more common scenario is that one parent is the primary custodian and/or the other parent has visitation from time to time…and this agreement is signed off on by both parents. You can also have a situation where no child custody suit was ever filed. The other parent just left; and then the parent with the child parrots that they have ‘sole custody’…which is practically true, but not legally. Even so, fighting for sole custody if there is not a clear reason to do so, may make the courts view you as being guilty of parental alienation.
#3 – If His Name Is Not on the Birth Certificate, Then He Has No Rights
Sorry ladies…but this is a myth. Especially nowadays, when a $10 DNA test will tell you in a few moments if you are the parent of your child or not (oh, and just a heads up, if the court orders a DNA test, you will pay more then $10 for it). Truth is, even if you did not put your child’s father on the birth certificate, he can petition his paternity in the court, and if DNA shows that he is the father, he earns his parental rights.
Of course, the practical response here is will a man do this? If he is not on the birth certificate, and he does not get a court determination of paternity, then he could be off the hook for the child legally. But this decision is up to him…not you.
What should be of more interest to unmarried mothers is how their state handles parental rights between unwed parents. In Ohio for example, an unwed mother has sole physical and legal custody of her children by default. Therefore, even if the father’s name is on the birth certificate, he would still need to file a child custody suit to have legally enforceable rights. Therefore unwed parents should pay close attention to how their state regards the issue; and not focus on if his name should or should not go on the birth certificate.
#4 – You Don’t Need a Lawyer
I really, really wish that this myth was true! However there is another side to this. If you and the other parent can reach some sort of agreement without attorneys and judges, then this myth is true in your case. The local court will have staff and maybe even a mediator that will hash out the proper format for a child custody order and then file it with the court. But if you and the other parent cannot reach an agreement, then you’ll need an attorney. So if you have more questions about child support options, visit https://www.thetxattorneys.com/articles/texas-child-support-not-always-as-easy-as-it-looks and schedule for a consultation.
In my case, my ex filed the child custody suit first (with an attorney on his side). I’m a smart cookie and initially I just went at it alone. However running to the court house got old pretty quickly. And adhering to deadlines and finding and filing the proper forms grew tedious. Also, I found out that his attorney was into filing surprise motions. At this point, I knew I needed an attorney that would be available to just hop up and deal with these surprise court appearances.
As far as finances, no, I did not have $5K to spend on a retainer. But after a lot of searching online, I did find an attorney that would charge an hourly rate as per whatever work he would need to do on my case.
#5 – You Should Take Off With the Kids
So this myth is tricky – because it really is a ‘damned if you do, damned if you don’t’ situation. So please, re-read my disclaimer above (again) before continuing on.
Ok, now that’s out of the way, I’ll reiterate something that I mentioned above – the courts like to retain stability and continuity is the lives of the children. If either parent uproots them from their home, then they are interfering with that. If you are in a situation where there is domestic abuse, reach out to an attorney or domestic abuse hotline before doing anything. In many cases (but not all) it would behoove you to get a protection from abuse or restraining order first. And then proceed.
Even so, many PFAs work in child custody arrangements into the order….and these arrangements are done without the benefit of a full-fledged child custody hearing/review. So that may be a short term solution…but you may be looking at a child custody arrangement that you do not want in the long term.
If you do decide to move, again you’ll need to review you state statutes and see the conditions that will constitute a charge of interference of child custody or the like.
However, with all of that being said, if you and your children are in danger, please get away as soon as you can! An attorney I consulted with gave me some good advice and said, “These cases, over time, will usually work out and the right thing for the children ends up happening.” So while the courts and a jilted ex can throw the book at you legally, ultimately it boils down to how much revenge motivates someone…and if the court can identify a parent that is acting vengeful vs. one that is acting in the best interest of the children.
From what I’ve seen, I would not wish the confusing, taxing and emotional family court system upon anyone. But it is better to go into it armed with facts instead of misinformation.