If you’re heading into a child custody dispute, then do remember this – you’re almost certainly not going to get everything you ask for.
A separation is very rarely anything other than acrimonious. Furthermore, that ill-feeling is often built on a foundation of prolonged, accumulating and escalating anger and resentment, none of which is the best starting point for what ideally should be a cooperative and compassionate process.
This means that in many cases, the parties will be going to court fuelled by anger and with a set of demands and requirements that, in their mind, is totally non-negotiable. The reality however is that far more of your time in court will be spent with your solicitor or barrister trying to broker an agreement outside of the courtroom than will be spent in front of the judge or magistrates. You’ll save yourself considerable cost and stress if you enter into proceedings with a clear understanding of what is actually most important to you, and what you might be willing to bend on to get things settled.
To give a personal example: I went into court with the resolute belief that as the primary parent I was entitled to have my daughter every Christmas. The first problem here is that what I am or am not entitled to is entirely beside the point – the court hearing was about what was best for my daughter. Whether it is in my daughter’s best interests to spend every Christmas with me or have them split between myself and her mother is a valid debate (and possibly one where I still believe the former is true), but the fact is that wasn’t how I was approaching the debate to begin with. And that was wrong.
It was made clear to me on the day that this was a fight I was almost certainly guaranteed to lose. Even in cases where one parent sees very little of their child, they will still more likely than not be granted the right to spend every other Christmas with them, my barrister informed me. Theoretically I could fight the point and theoretically I could win, she said, but was that really where I wanted to devote my energies? And was that a point I wanted to appear uncompromising on? Of course it wasn’t.
What I had to do, really, was identify the core of what it was I was fighting for. The central reason why you are fighting for custody or contact should always be at the forefront of your mind and form the basis of what you want to achieve from the agreement. If your motivation is simply getting at your ex then you’re wasting your time and you’re hurting your child. Figure out what is right for your kids and focus on the primary outcomes that will achieve this.
For instance, it may be that your ex-partner is a heavy drinker or uses drugs. Or that they have a track record of inappropriate behaviour or cannot be trusted to provide proper care. Or it might simply be that you’re not getting the contact that you are legally entitled to and that your child has the right to enjoy. Alternatively, there may be concerns about the behaviour of your ex’s new partner, or about their housing situation.
In any of these situations, you need to identify what it is that you believe will address the problem. So, running again through the examples above, the desired outcomes could be: contact with your ex needs to be supervised; the confirmation of your visiting or contact rights; drug checks or a legal undertaking to not drink when your child is present; guarantees about privacy for your child at night.
Remember that the court will by law always look to find a way for a child to have contact with both parents. Christmases and school holidays will nearly always be shared equally and, when it comes down to it, you’re likely going to have to accept some things that you’d rather not. Feelings of personal betrayal will often lead to general unease about an ex-partner’s trustworthiness and probably an overarching belief that you can’t ever really fully rely on them to do their best by your children. But the reality is that you’re going to have to. That person is your child’s parent too, and as much as you may not always approve of their conduct and question their judgement, as long as you can guarantee your child’s safety when they’re in their care, you’re just going to have to live with it.
All of this and more are part of why an agreement out of the courts is always preferable. Not only does it save on time, cost and stress, but it also allows the both of you to agree on conditions that are not decided upon by a remote third party – that being a judge or magistrates.
And no matter how acrimonious your split may have been, a custody or contact agreement should nearly always be possible as long as you’re both prepared to be reasonable and to compromise. Yes, you might have to give up more school holiday time than you’d like and yes, you may hate the idea of your child spending noisy nights in poor housing. But if that means you get something crucial in return – be that, for example, testing for substance abuse, kids only spending the nights there at weekends and not on school nights or a legally binding behaviour agreement – then it is probably worth it.
A compromise by its nature means you’re not going to get everything you want, but it’s our ability to compromise that keeps humans from a permanent state of war and conflict! The capacity to look at the bigger picture and sacrifice some of your smaller wishes in order to secure what fundamentally is most important to your child’s wellbeing will put you in a great position to get through a custody battle and gives your kid the best chance of coming through the whole thing unscathed.
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Image (cropped) by Greg Knapp under a creative commons licence