Issues With Womens Child Custody During Divorce

Every state varies in its laws for women's custody and divorce. Most states have two distinct types of custody: legal and physical. Legal custody gives a parent decision-making power as far as where a child will live, attend school, and how major health decisions will be made. Physical custody defines the day-today care of a child including feeding, nurturing, transporting, and providing the child’s daily needs. A mom fighting for physical custody must show the court she is a good role model for her children and that she can provide for the child physically and emotionally.

Who Determines Custody During Divorce?

Some states try to keep parenting time decisions out of the court’s power and have “parenting-time experts” who are typically trained psychologists who can meet with the children and both parents and help establish a schedule that is best for the children. The consideration is almost always what is best for the children and NOT what is best for the mother or for the father. It is always assumed that it is in a child’s best interest to spend time with both parents.

Issue with Working Moms

Working moms might have some concerns about how their focus on a career might affect their chances of getting custody. There are situations where working moms are less engaged in the day to day care than the dads. Some dads might try to portray a working mom as unable to nurture a child, but most states recognize that mothers and fathers must often both work following a divorce in order to afford children and two households. A working mom must show that she is engaged in the care of her children and should also show that the children will benefit from her primary physical custody.

Fault Is Usually Not Considered in Determining Custody

The Uniform Marriage and Divorce Act also proposes a “no-fault” divorce which means that a person’s conduct in the marriage will not be used against him/her in determining custody as long as the conduct is not harmful to the child. For example, if a parent has had an extra-marital affair, as long as the child was not involved in the relationship and was not exposed to anything harmful, that parent who had the affair will not be negatively impacted with regard to custody determinations. It is important for parents to be aware of this general rule in the courts. A parent who may be guilty of immoral behavior is not automatically deprived of custody as long as the behavior does not interfere with the parent’s ability to be a good parent.

Fathers who try to portray mothers as unfit because they have had extra-marital affairs will not be successful in most states. While some states still have unwritten different standards for mothers and fathers in regards to marital misconduct, most states will not consider marital misconduct in making custody determinations. A mother should be careful to not introduce the children to a variety of men and she should wait until she is in a committed relationship, or until the custody determinations have been made.

Getting Legal Help

Any mom with concerns about getting or keeping custody of her children in a divorce should consult with a family law attorney. Even if a mom has been actively involved in the child's life, she cannot assume she will be awarded the custody she wants. Some states are more favorable for fathers getting custody. Consulting an experienced attorney will help you understand the issues you might face in your custody battle and help you understand the best strategy for you and your child.

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