When a divorcing couple goes to court over custody of Harry the Hamster, you can read about it in the tabloids (right next to the story revealing that David Letterman's replacement will be Elvis). People actually do fight over the most trivial things. It's why they aren't married any more.
But it isn't funny when couples fight over custody of their children. And those fights are so common that they almost never get into the newspapers, unless they turn into all-out wars -- the ones that result in kidnapping or murder.
Even custody battles that aren't deadly leave scars. If you don't love your husband or wife any longer, you should still try to minimize the damage to your kids. First, be aware that in awarding custody the court looks only to the best interests of the child. This is true in all states. In Virginia, the law sets out some specific factors for consideration:
- The child's age and health. Virginia, like most states, no longer has a "tender years" law that automatically awards custody of very young children to the mother. However, a nursing infant probably will stay with Mommy, unless Daddy can show that she's seriously unfit -- for example, if she's a heavy drug user.
- The age and health ("physical and mental condition") of each parent. Obviously a seriously ill parent could not by herself care for her children. But a judge might well grant custody to someone who needed counseling and took antidepressant medication for a time following the breakup of his marriage, if his ability to care for his children wasn't affected and he was otherwise the better parent.
- The needs of the child. As children get older there's usually less need for a full-time, at-home parent. Babies may need Mom, but a teenage boy might be better off with a Dad who could provide him with discipline and a strong male role model.
- The role each parent has played and will play in the child's life. To be brutally frank, this factor is the one that probably makes it hardest for away-from-home parents such as active duty sailors to get custody. If you've been deployed for most of your child's time on this earth, and especially if you're in a seagoing rating, it can be very difficult to persuade a judge that you've played or can play a significant part in your child's upbringing. If you're in a custody battle and you honestly believe you are the better parent, be prepared to document all the "quality time" you've spent with your child during the months that you were at home.
History of family abuse. This doesn't need much explanation. Depending on the kind and degree of abuse, an abusive parent will not get custody, and will likely have only supervised visitation (that is, you will not be left alone with your child).
Whatever else the court thinks is worth considering. This might include, for example, the grounds for divorce. If you've left your husband and moved in with your new boyfriend, that's adultery. Don't expect a court to let you take the kids into that situation.
Before you get into a custody battle, think about these factors and ask yourself -- and your attorney -- whether it might be simpler for you and your spouse to negotiate.