How to Deal With a Tricky Custody Situation

Friday, April 27, 2012

Leonardo Angiulo, GoLocalWorcester Legal Expert

Leonardo Angiulo, GoLocalWorcester Legal Expert.

When short term romances or long term relationships end, sometimes you get more than heartbreak. Sometimes you get a kid. And all the responsibilities that go with it.

If the two of you can agree on a visitation schedule and to share expenses, then you probably will not need a court order to deal with custody. Many times, however, two people decide not to be together because they do not agree on fundamental issues. The biggies tend to be monogamy and money. And if two people could not communicate well at any point in a relationship, it is doubtful they will be able to communicate when separated.

So, what if I have a hypothetical child with Mary. Mary’s a wonderful girl with a terrible pill problem. In fact, Mary’s addiction issues have gotten to the point that she isn’t so wonderful anymore. I’ve got evidence that she isn’t focusing on the child’s meals and clothes the way she should. Even if we once had an agreement between us about her watching the kid during the week and me having the weekends, I believe the deal needs to change. For example, given the drug issues, I’m not interested in sending her money for the kid because I think it is going somewhere else. Needless to say, Mary doesn’t agree with any of this.

Enter the Probate Court. When you bring an action in probate court, you are asking a judge to review the facts of a case and make a decision. That decision is all about what is in the best interests of the child. So, I file a complaint asking for sole custody of my child citing ongoing concerns of drug use and a belief that I can offer a higher quality of life than Mary. Physical and legal custody are two aspects of what it means to be a parent and the court will address each.

If a person has physical custody, the child resides at that person’s home. Typically, the other parent will have some kind of visitation schedule which can include weekdays and alternate weekends. In some case, like the hypothetical found above, there might be a supervised visitation schedule set by the court to facilitate a healthy relationship with the non-custodial parent. Also, the parent with physical custody will usually be entitled to child support from the non-custodial parent.

The amount of child support due is based on guidelines and is specific to the facts of a case. There are some excellent resources online at the probate and family court website found here. On there are all the documents necessary for filing, answering and finding your way through a probate court case, including child support. Many of the forms will actually allow you to enter numbers and do the math for you. Of course, having these forms is a bit like having a full toolbox and a car than needs to be fixed. Sometimes you still need to call in a mechanic who knows how to use those tools.

The second aspect of a custody dispute is the question of who has legal custody of the child. This can be shared or held individually by one of the parents. Legal custody is roughly defined as the authority to make decisions about your child’s life. Let’s say Mary and I have a disagreement over where our hypothetical child should go to school. One of us believes the child should go to the local elementary school and one of us believes that a private school two towns over is the better option. If I have sole legal custody I can make the final decision. If, however, we have joint legal custody neither one of us has a superior position on the matter.

Sometimes, when a relationship breaks down, a restraining order will be issued against one party or another preventing communication. This will have a direct effect on a court’s decision of legal custody. Remember, the theory behind joint legal custody is that two people will talk about what should happen in a child’s life. With a restraining order in place, the court will necessarily have to choose one parent over the other. And the parent with the restraining order against them may be in a diminished bargaining position in front of the judge when that decision gets made.

Ultimately, when two people share a child there will be disagreements. The Probate Court provides a forum for people who cannot agree and does a nice job resolving arguments through court order. The court offers people an outside perspective on disputes because the judges do not have the emotional investment that parents do. With that outside perspective they can focus on the question of what is in the best interests of the child, which is at the heart of all custody cases.