As a family law practitioner, I get many of the same questions from anxious parents regarding what to expect in their custody cases. When a couple decides to get divorced, it creates a very stressful time for all involved but I have found that the greatest source of stress for parents during this time is not knowing what is going to happen with the children regarding custody. Parents very often have preconceived notions about how custody cases proceed, based on what others have told them or what they have looked up on the internet. Below are several common “myths” about child custody, followed by the facts that serve to debunk them.
1. (From fathers) – I cannot get equal custody because the court always awards primary custody to the mother.
FALSE: While this may have been generally true many years ago, it has not been this way in a long time. The court’s ideal custody scenario is always 50-50 custody, with each parent have equal time with the children. If the parties cannot agree on a custody schedule and awarding primary custody to one parent is warranted, the court will evaluate what is in the best interest of the children and make the decision accordingly – the gender of the parent to whom primary custody may be awarded is not a factor it the court’s consideration
2. The other parent and I have agreed on the custody schedule so we do not need to file anything with the court.
FALSE: It is great (and is always encouraged) if the parties can agree on the custody schedule ahead of time. However, for the agreed-upon schedule to be enforceable, it has to be filed with the court and made part of the court record, through an order signed by a judge. No agreement between the parties – even if it is detailed, signed by both parties, notarized, etc. – is enforceable by the court unless it is filed with the court and a judge has signed an order, approving the agreement.
3. Once we have a child custody agreement in place, the parents cannot deviate from that schedule, even if they agree to the change.
FALSE: At any point in time, the parties can ALWAYS agree to any changes, modifications, adjustments, etc. to the custody order. It is only when the parties disagree that they must default to the schedule set forth in the custody agreement. This is the reason for having a custody agreement in the first place – the court encourages full cooperation and consideration between both parents but when the inevitable disagreements arise, having a custody order in place provides the parties with clear guidelines regarding the custody rights and responsibilities of each parent.
4. Once a final custody order is in place, it cannot be changed.
FALSE: Even though what will be filed with the court regarding custody (whether it be an agreed-upon custody order or an order decided by a judge) will be marked as the “final” order, no custody schedule is ever really final. Custody orders, like support orders, can be modified if there has been a change in circumstances. Some examples of these changes in circumstance include the following: a parent moves too far away to make the current 50-50 schedule feasible; a parent gets a new job that is not compatible with the current custody schedule; a parent moves into a new house that now has space for the children to have their own rooms, such that 50-50 custody now would be possible.
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