Should I handle custody before my divorce?

Women ask me all the time whether they should just get custody handled first, and then come back and handle the divorce itself.  In a sense, I think I get what they’re saying – custody is the more pressing concern immediately, and needing to have that handled is clouding everybody’s judgment about everything.  Maybe they feel that if they could just get custody determined, everything else would work itself out a little more easily.  I get that.  That makes sense.

But to me, from a practical standpoint, it seems like it’s just dragging things out and making everything take a lot longer.  Maybe that okay with you, and maybe it isn’t.  Maybe you think custody is just one part of a two part process.  I don’t really view it that way; I think that if you’re negotiating an agreement, whether that agreement relates to just custody or whether it delves into all the details related to the divorce, it’s really just a one step process (though there can definitely be varying degrees of difficulty).

Agreements in divorce and custody

Most of the time (though certainly not all the time), it’s ideal to resolve a divorce or custody case by agreement.  It allows the parties to have a measure of control over the results, and it encourages parties to take ownership of the issues.  Also importantly, it keeps the final decision out of a judge’s hands.  (Though very knowledgeable regarding Virginia law, judges are probably the last people you want deciding what happens to your kids and/or your most valued possessions.)   We often negotiate agreements in both divorce and custody cases; our divorce agreements, though, contain custody provisions if there are children involved.   Though custody is often one of the most contentious parts of an agreement, it’s all part and parcel of the total divorce.  It’s negotiated, just like anything else, and sometimes it does take several attempts before we have an agreement that everybody is willing to sign.

Negotiating just custody first

You can certainly choose to negotiate custody first, but you don’t have to.  In fact, I’m not sure I would advise it, in most cases. By the time I’ve drafted an agreement and sent it back and forth a couple of times, you’ve spent almost as much as you would’ve spent to draft and negotiate an entire agreement regarding your divorce as well.  Once we’re negotiating, and drafting agreements, handling the divorce alongside custody is really only marginally more expensive. There are reasons you might choose to only negotiate one particular part, of course—like, for example, if you can’t agree regarding your entire divorce, and you just want to memorialize at least one part that you DO agree on.  You could also do that in reverse—say you can agree about what to do with the home, but you just can’t agree to custody so far—so you draft an agreement to resolve the one critical little piece that you CAN agree on.  That’s fine, and can be very practical.  After all, it can be really helpful to wrap up at least the one issue we can reach an agreement on—rather than risk him changing his mind later on down the road and having nothing on paper at all.

The danger of negotiating custody first

I get it: custody is a big deal.  It’s something you want (really, need) to have resolved.  The holidays are coming up, and you want to know what to expect. For many moms, too, having a custody agreement in place means that dad is going to continue to be involved in the child’s life, something that most moms are desperate to have.  In fact, they sometimes ask me things like, “how can I FORCE him to exercise his visitation?”  When pressed, they just say how important it is to them that their child have a relationship with their dad, too, and they can’t stand the hurt it causes their children when dad doesn’t do what he says he’ll do.   …Unfortunately, though, I can’t make him a good man if he isn’t one already.  There’s not a magic wand that attorneys have where dads are concerned, and there’s very, very little I can do to encourage him to do things that he has already expressed an unwillingness to do.  (And, spoiler alert: the judge can’t force him to, either.)

It’s a shame, really, and it’s hard when your kids are learning the kind of man he is the hard way—but there’s nothing any of us can do to shield them from that. The biggest danger, though, when it comes to negotiating custody first, is the fact that custody is always going to be modifiable based on a material change in circumstances.  When I say “custody,” I mean anything relating to the kids – custody, visitation, support – will be modifiable later on down the line.  The reason why is because custody cases are decided based on the best interests of the child factors, and it is those factors that guide decision making where custody is concerned.

If you or he are earning more, working different hours, have remarried, or whatever, a different custody, visitation, or child support arrangement might be better for the kids.  The court will always re-hear custody, whether it was judicially determined before or whether you reached an agreement before, if there’s a material change.  (And what constitutes a material change is pretty broadly construed because, again, we’re looking at what’s in the best interests of a the child.  A judge won’t adhere to a strict list of things that constitute a material change in circumstances if a kid seems to be suffering; if it’s in the child’s best interests and it has been at least 6 months to a year since the previous determination was made, custody, visitation, and support will often be re-determined.)

So the risk is that you’ll reach an agreement, later on down the line go to divorce, and then find that your husband is petitioning for a change in custody based on a material change.  That’s not to say that it couldn’t happen more than once if you do custody alongside your divorce, but (and maybe this is my cynicism talking) I do tend to see custody come up again as a retaliatory measure.  If he’s unhappy about the way the divorce is going, he may act out by trying to change custody.

Ultimately, of course, it’s always up to you.  Whether you want to spend the money up front to try to resolve only one issue when there are interrelated issues is always going to be a complex decision based on a multitude of factors.  Really, if you’re trying to make that decision, it’s probably one you’re better off making with an attorney on your side, who can help you figure out what the various advantages and disadvantages to any particular course of action might be.

You should be aware, though, that negotiating only custody may not, in fact, actually be a cost-effective measure as you’ll still have to negotiate the divorce later on down the line,  and, anyway, custody, visitation, and child support are always going to be modifiable anyway.  Just a couple of things you might want to keep in mind strategically as you plan your divorce and/or custody case. For more information, to get a free copy of our divorce or custody books, give our office a call at (757) 425-5200.

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