This was an easy question in earlier times.
This was an easy question in earlier times. Children were property and the husband owned all property. He got custody. Later, courts adopted the Tender Years Doctrine stating a child of tender years should be with the mother. She got custody. These were tolerable systems because each provided a predictable result which avoided custody fights.
Later, the courts adopted the principle that custody should be awarded according to the best interest of the child. This remains the test today. It is an awful system because no one knows what is in the best interest of the child so the results are not predictable, which creates fights. Professor Martin Guggenheim says when someone argues for the best interest of a child, they are usually arguing for the best interest of some adult.
When I was a young lawyer, joint custody meant parents had equal time, authority, and responsibility with the children. Today, joint custody has become a meaningless term. This means one must look at the actual time, authority, and responsibility rather than the term used for custody. Parents and the public favor joint custody. The courts, particularly South Carolina’s appellate courts, view joint custody with disfavor. Most trial judges will approve an agreement for true joint custody but rarely award true joint custody in a contested case. If the children of divorced parents were polled, they would most probably oppose true joint custody
Today, the answer to who gets the children is more complicated and less certain.
My job is to represent my client. I do not represent the opposing party, grandparents, guardians, or the child. I represent my client. I try to prove facts supporting my client’s position and disprove facts opposing my client’s position. Different cases put me on different sides of the custody issue. My personal opinion is the parent who was the primary caretaker of the children during the marriage should have custody, the other parent should have visitation, and the parents should work together to help their children become happy, What’s Wrong with Children’s Rights, Martin Guggenheim. Harvard University Press, 2005. 22 healthy, and productive adults. Guardians ad litem and counselors should not be used to involve the children in a custody fight between parents.
Custody fights are emotionally and financially draining. Custody fights scar children and their parents, sometimes permanently. Sane rational parents who love their children will do all within their power to avoid a custody fight.
If a party voluntarily allows the other parent to have custody, the judge will give this great weight in deciding custody. Never voluntarily surrender custody if you intend to regain custody. If you want your spouse to have temporary custody, then have a written agreement stating the facts and the terms so that you will not be prejudiced later.
An ill-conceived statute requires judges to consider a child’s preference in awarding custody. Children should be neither forced nor allowed to choose between parents. Most judges sometimes consider the wishes of an older child but give little or no weight to the wishes of a younger child. A sixteen-year-old may be allowed to choose the custodial parent. A judge will not be swayed by the wishes of a six-year-old.
If custody is an issue, you must prove both your ability and your willingness to care for your child. Too many parents and lawyers present custody cases in broad generalities and conclusions rather than specific facts. Be prepared to describe to the court the living arrangements the children will have with you, such as where they will attend school, who will be with the children if you are absent, and the effect of your work schedule. Many people believe all they prove to get custody is the other side committed marital fault. This may have been true as recently as the early 1970's, when adulterous spouses frequently lost custody, but it is not true today. Custody is frequently lost when one party relies too heavily on the marital fault while offering little as to the best interest of the child. See Chapter 24, Presenting the Case for Custody, page 51.
Regardless of which parent is awarded custody, each parent has these following rights:
“The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and 23 management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or non-custodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children's school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.”4
Parents who love their children will not let those children be involved in the custody fight. Do not discuss the case with your children. Do not ask or encourage your children to express a custodial preference. Do not say or suggest anything negative about the other parent to your children. Treat the other parent with dignity and respect. Parents should allow children to be children. Parents should allow their children to love each parent without taking sides.
Of all the chapters in this book, this is the one in which I am the most at odds with other lawyers and judges because of my strong disagreement with what others may perceive as the best interest of the child. This chapter is the strongest diversion between my professional advice and my personal opinion.