When you are considering a divorce, one thing every mom thinks about is where her children are going to live. The thought of splitting custody with your Ex can be scary for many mothers. These are your children, and you want to spend as much time with them as possible. Depending on where you live and your circumstances, it may be possible for you to get sole custody of your children. This article will explore the best advice on getting full child custody.
The Trend of Child Custody
Historically, there was a trend of children primarily living with one parent after a divorce. Generally, children would live with their mom, who was the primary caretaker. However, there has been a shift away from assuming moms are the primary caretakers and giving parenting time as such. Many states assume that a child should have both parents in their life and will deal with custody accordingly. The current trend in child custody is toward some form of joint legal custody, with both parents having decision-making power (legal custody) and control over where the child lives (physical custody).
Additionally, the US Constitution says that parents have a right to raise their children with minimal state involvement. Some people argue that this constitutional provision favors joint custody over sole custody.
Is it Possible to Get Full Child Custody?
The short answer is yes, it is possible. The longer and more frustrating answer to this question is that it really depends on where you live and your life situation. This is true for both legal and physical custody. First, if your Ex has no desire to have part of the custody arrangement, then great! The bulk of the legal work is done. You and your Ex can create a parenting plan with you taking full custody and your Ex having visits as you see fit.
However, child custody laws are different in every state. States use a variety of standards to determine how custody should be divided.
The overarching principle that guides custody decisions is what is in the child’s best interest. Therefore, in order to get full custody, the judge must determine that full custody to one parent is in the child’s best interest.
Many courts default to joint custody being in the child’s best interest. This is true for both legal and physical custody. This is because it is often believed that children should have both parents in their lives when possible. Each state has different things they consider when determining the best interest. For example, in Illinois, judges strongly favor joint custody agreements. To get sole child custody, you must prove that your Ex is an unfit parent. Some examples of unfitness may include a history of abuse, physical or mental incapability, crime, or various dangers. However, even if one of these factors is at play in your divorce, that does not mean a judge would automatically grant sole custody. It would be best to consult an attorney when starting custody. Many attorneys offer free or low-cost consultations that can help you get on the right track.
Consider reading, “Best Advice on Custody for Divorcing Moms.”
Even if you do end up with full custody of your children, your Ex may be entitled to extensive parenting time. This means that they would still have visits and a split schedule in some capacity.
What You Should Know When Asking for Full Custody
The best advice on getting full child custody after a divorce is to go about it by an amicable parenting agreement. The easiest way to agree to any custody provision, including full custody, is through an agreement. If you and your Ex are on the same page about this custody arrangement, it might be a great option for your family. The process is then similar to any parenting agreement. You can address it through out-of-court paperwork or DIY divorce. See article on DIY divorces. Generally, the prepared parenting agreement must still be approved by a judge and be in the child’s best interest. Still, unless there are some outstanding circumstances, this makes the process a lot easier.
Check out “Sample Divorce Paperwork, Questions, and Scenarios: What’s Their Value?”
That being said, if you know your Ex won’t agree to sole custody, it can lead to added costs, time, and legal headaches for you down the line. If you do not have an agreement for sole custody, you will likely have to go before a judge to make your case. Additionally, given the current trend toward joint parenting, some judges may hesitate to grant one parent full custody in a contested case. If both parents were in the child’s life before the divorce, they might want to keep this consistency going forward. This means you will have more time in court, more hearings, and more evidence to make your point. The likelihood of hiring a lawyer increases when your goal is to win contested sole custody. A lawyer would be best prepared to help you gather the needed evidence to fit your state’s sole custody standard. On the flip side, this increased reliance on hiring a lawyer can also add a lot of money to what can already be an expensive process. Learn “What is a Contested Divorce?” here.
If you know that your Ex will fight you tooth and nail over full custody, then it may be necessary to do some expectation setting for the custody proceedings. Aside from legitimate abuse and safety concerns, it may be a difficult position to win.
Consider reading, “5 Must Do’s When Your Child Refuses to Visit Their Father.”
How Do You Know if Full Custody is Right for You?
As with most aspects of getting a divorce, how you think about custody will ebb and flow as you learn and experience more. You might begin the divorce with your mind made up that you need sole custody and then gradually warm to the idea of joint custody or vice versa. Key considerations in approaching custody will likely revolve around your family’s specific relationship dynamics. If there is an outstanding circumstance, like abuse, criminality, or other severe safety concerns, then you might consider the option of pursuing sole custody. However, if you are simply (but rightfully) frustrated with your Ex for the breakdown of your marriage, then you might consider other options. As a mom who loves her kids, you will do whatever it takes to make sure they are happy, healthy, and thriving throughout this life change.
NOTES
Elizabeth Newland is an Illinois-based attorney who works for a family-centered non-profit.
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