Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Tuesday, January 26, 2010

Do You Think You Deserve or Want Sole Custody? Read This...


The knee-jerk reaction of the primary caretaker of the children in a divorce settlement negotiation is often to maintain that role at any cost. In other words, the pre-divorce primary caretaker of the children seeks sole legal and/or physical custody of the children. Often this causes the other parent to greatly fear being marginalized in the children's lives at a time when the children need both parents more than ever before. The sudden near-disappearance of one loving parent cannot be in the children's best interests. Often the other parent feels penalized for having single-handedly supported the family while the other parent was a stay-at-home parent for the benefit of the children. It hardly seems fair. Unfairness causes anger and resentment.

The argument usually goes something like this: "What does he/she know about raising the kids? He/she doesn't even know the names of the kids' teachers, doctors, coaches, etc." As a mediator I may ask (where the other parent seeks joint custody of course) "Do you think he/she can learn those things? How did you learn about parenting before you had children?"

What are the real costs in the situation where the non-primary caretaker parent "gives up" the fight and agrees to be regimented to an "alternating weekend plus 1 mid-week dinner parent?" They may include a diminished child-parent relationship for the parent who will just be the "visiting parent"; or suddenly that parent stops having any disciplinary role (since he/she only gets the children's leisure time requiring less discipline) and is often accused of being the "fun one" the "Disney-Dad/Mom" or the opposite effect- that parent feels stripped of parental rights and goes off, gets remarried and "replaces" his/her lost children with new ones. Rarely do sole-custody-insisting parents think of that. Suddenly the other spouse has new financial and emotional obligations. Think about the effect on the children's emotions, not to mention inheritance and/or shared life insurance policy proceeds. If there is a "de-bonding" effect caused by the grief of the virtual loss of children in his/her daily life, there is less emotional investment and therefore less financial investment- think of voluntary contributions to college, life insurance policies, or extras not affordable by the one parent and not required under child support.

The primary caretaker in the throws of a divorce may not visualize what the future will look like. Naturally in such an overwhelming life-change its hard to see past the present. Not only will he/she be a caretaker, he/she will be running and juggling the home- i.e. paying bills, mowing the lawn, especially where divorce causes a downturn in financial status and the gardner/the housekeeper/the handyman is off the payroll as a luxury. Single parenting isn't easy, and where the other parent was "forced out" will the resentment lead to an attitude of "well, well, well, not doing so well on your own are you?" or some other deep-seated half-wish to see that primary caretaker actually fail (because might total failure, i.e. a suddenly troubled child run to live with the other parent making his/her dream come true?).

Other costs to the sole custodial parent? A likely lower earning potential? What kind of employee will you be when only you are responsible for child care on sick days, snow days, school holidays, days off for the end of the marking period....etc., etc.? Sometimes a short-sighted sole custodian can't see past his/her greater child support check to the years when that support ends, still leaving the sole custodial parent with the need to support him/herself, but perhaps the inability.

But maybe, just maybe, sole custodial parent will meet someone and get remarried and gain financial footing by the joining of households. Except, ask yourself this: How much more difficult will it be to date, to have a social life? Do you think child support covers babysitting for dating? If so, you should read that statute again. Even if you can afford the baby-sitter (i.e. grandma), what freedom would you have to stay overnight with your new lover? Or will you simply experience your dating successes and failures in front of the children, i.e. integrating the new lover with the children because there is no other real relationship alternative? Is this in the children's best interests? How do children impact future relationships? What happens to the new bond of child-boyfriend/girlfriend when a relationship fails? Or should I say another relationship fails? How might this impact your children's ability to bond in adult romantic relationships? Ask a psychologist or read a book and you'll find out.

Here's one you might not have thought about. What if your "edge" in forcing your soon-to-be-ex to agree to your sole physical custody is that your kids' other parent had an affair? Whether or not that actually impacts custody awards is not the issue. Sometimes the cheater feels so guilty and is driven to give in on the issue of custody even where he/she desperately wants it.

Oh yes, the bloom of formerly-forbidden romance is often doused by the snotty noses and whining voices that only a parent can love or tolerate. Yes, I know. I just implied how bad it was to integrate new lover into the children's lives and now I'm contradicting myself. But, but, but.....If guilty-non-primary-caretaker-cheater-spouse really desires joint physical custody? Might you also negotiate greater child support? Or no pre-divorce introduction (or a specified time period perhaps reached in consultation with a pediatric psychologist) and/or no overnights with paramour and the children as part of the divorce deal? Watch how fast the paramour who remains on the outskirts takes offense and leaves. That's right. Paramour was dreaming "if only we could be together all would be perfect!" And yet, reality often plays out differently if you have the courage to let it. That's not a guarantee, obviously. However, considering the poor statistics the formerly-married-person & paramour relationships, better to force its ending sooner rather than later???? If the paramour-turned-legit-lover rises to the challenge and hangs in there, at the very least, your children have a better chance of remaining the top priority at the insistence of the new shared primary caretaker.

When allowed to take on the new and perhaps novel role as part-time primary caretaker, the joint custodial parent often reacts in favor of the children when the former-paramour-turned-legit-boyfriend/girlfriend challenges the children's priority. The bonding and protective instincts of a primary caretaker should never be under-estimated. If only you let it. If only you can put aside the knee-jerk reaction to the divorce and allow him/her to do so- yes for his/her benefit, but also for your own benefit, and most of all, to the great benefit of children who need two emotionally/financially invested parents.

I often joke (to friends, not mediation participants who may fail to see the humor) "Hey, what better punishment is there then forcing the other child-needs-ignorant-parent to share in the joy of laundry/grocery shopping/sick kids in the middle of the night/vomit/dirty toilets/whining/midday emergencies/forgotten homework/meal preparation/I can't sleep/I forgot I need snacks for twenty tomorrow/etc., duty?" The truth is that those obligations are doubled-edged. Yes, a pain, but yes, they are bonding events. But my goodness, it's not easy is it? At least realistically consider all the consequences before you decide how yours and your children's best interests are truly best served.



This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

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