by Mary Ellen Flynn, Attorney
At the beginning of a divorce process, preparing yourself for child custody issues can seem daunting and scary.
How child custody is decided and how it works is likely new to you, and, unfortunately, there are widespread misconceptions about it. This blog debunks five common myths and misconceptions about child custody, so you have the correct information and access to more.
Myth #1: “Custody Disputes Always Go to Court”
People often assume that going to trial is the only and unavoidable way to set up child custody when the parties don’t immediately agree. While many custody disputes end up in litigation, parents also have other options to resolve the issues outside of the courtroom. In fact, judges and divorce attorneys often encourage parties to give the alternatives their best effort, since many parents would prefer to decide together on what happens with their children, when possible, instead of leaving such decisions to a Judge. These options include informal negotiations, mediation, and the collaborative law process, which you can learn more about here.
Myth #2: “The Mother Always Wins Custody”
One of the most common misconceptions about child custody is that the mother is automatically favored or more likely to win. There is no law for such bias or preference towards mothers retaining custody. Instead, child custody is decided based on the child’s best interests. Determining a child’s best interest takes into account several factors, including which parent has been the child’s “primary caregiver,” meaning which parent (if either) did most of the caregiving tasks for the child (i.e., feeding, bathing, taking them to school and the doctors). Although more mothers may have traditionally filled such roles in the past, Courts recognize that times have changed, and there is no legal presumption for that to be the case today. Even if there is a parent who has historically been the primary caregiver, some courts also recognize that the roles of a family evolve after divorce and that the other parent should have the chance to show they can step up into duties they didn’t take on before. With this in mind, there is a notable trend towards more equal custody arrangements. Depending on the case, some courts will find that what’s in the child’s “best interest” is substantial, meaningful time with each of their parents.
Myth #3: “If My Child is Old Enough, They Will be Able to Decide Custody”
Some judges may consider a child’s opinion if the child is old enough to make a rational decision and if allowed by law. However, even when allowed and no matter how close the child is to 18, the child’s opinion is never the ultimate decision or only factor considered. Custody decisions are based on the best interests of the child, and that simply cannot be decided by the child alone. The court will consider all the circumstances affecting the child’s best interest, including the basis for the child’s opinion and ensuring it is not simply to be in a home with fewer rules. With good reason, judges tend to be hesitant to involve children in the messy divorce process at all, preferring to leave them out of their parents’ disputes and away from any situation where they could be pressured to pick a side.
Myth #4: “The Custodial Parent Can Move Away with the Children Anytime”
After the court enters an order on custody, both parents must follow that order unless it is modified or until the children reach 18. For the custodial parent, this means ensuring that the other parent has access to the parenting time provided to them in that custody order. If, for example, the custodial parent wants to move so far away that it would be impossible or very difficult for the secondary parent to have their scheduled access with the child, then that move would violate the order. Before doing so and in order to avoid being found in contempt, the custodial parent will need to seek a modification of the order with their new residence in mind. If and how a modification is granted is, again, based on the best interests of the children.
Myth #5: “If a Parent is Behind on Child Support, Then They Don’t Get Visitation”
Not only is this misconception all too common, but it can also be very damaging to the parents who believe it. Regardless of how much child support you are owed, do not take it upon yourself to withhold your child from their other parent. Doing so is a violation of the court’s custody order and can be seen as you interfering with the other parent’s custody or attempting to alienate them from the child, which are serious offenses that can come back around to affect your own custody rights. If you are owed child support, tell your attorney or seek other legal counsel. A family law attorney can help you collect the money you are owed and, if needed, involve the court to enforce child support payments.
The above are just some of the prevalent misconceptions about child custody, but many more are out there. A family law attorney can answer your questions, debunk the harmful myths, and give you the legal advice you need to navigate the custody process with clarity and understanding.
Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The Firm practices family law, estate planning, and probate throughout Maryland and the District of Columbia, and represents individuals seeking disability benefits throughout the country. The Firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The Firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.