I’ll give it all up, just give me custody!

It’s tempting to say that you’ll give up everything you’re entitled to receive in your divorce in exchange for custody. I’m a mom myself, I can totally understand the appeal. After all, there’s literally nothing in the world more important than your children.

At the root of it, too, there’s also the sense that keeping as much custody as possible allows you to parent the way you always envisioned you would. There’s nothing that makes a mom feel like she’s losing control more than ceding too much authority to her soon-to-be ex husband. In most cases, moms tell me that their child’s father didn’t take on as active of a role in the raising of the children; in some cases, he took virtually NO role. It seems ridiculous to these very hands-on moms that their children’s fathers could even act like they want or could handle any kind of meaningful parenting time.

The court will almost certainly give him an opportunity to parent, even if he hasn’t really taken those opportunities seriously before. In fact, more and more often, we’re seeing courts award shared custody (meaning that the noncustodial parent has between 90 and 182 days in a calendar year). The thought of that – especially the thought of a terrible week on/week off custody arrangement – is enough to drive many moms to distraction and make them consider unwise solutions.

I can’t tell you how many times I’ve heard a mom say that she’ll give up anything in exchange for custody. There are some real problems with that, though.

If it were that simple, it’d be fine – but it’s not. The thing is, anything related to equitable distribution (the way the assets and liabilities are divided) is done when the separation agreement is signed or the final order from the judge is entered. There’s not going back and changing it.

You, you see, as your husband’s spouse, are only entitled to the benefit of what was earned during the marriage. You know what those things are at the time of separation and divorce, so you can quantify and divide them, and you have one shot to do so.

Custody, visitation, and child support are different. They are modifiable based on a material change in circumstances. Why? Because your children are entitled to more than what was earned during the marriage. They’re entitled to the best of you, throughout your life. For custody and visitation, a standard called “best interests of the child” applies. If you or your husband earn more money, child support can be increased. If something changes at home that makes a change in custody necessary, that can be achieved, too. Changes aren’t easy and are often gradual, but they happen. In some cases, parents go back to court over and over and over again before their children turn 18, petitioning for changes to custody, visitation, and child support!

Why can’t I give up everything in exchange for custody now?

Obviously, because it’s modifiable, it’s risky to give up everything in exchange for custody, since it can be changed. If things go well, you could set up a good precedent – say the kids are doing well, they’re in therapy, they’re well adjusted, getting good grades, and they love their extra curricular activities. They see their dad often, and the relationship is flourishing. That could be good evidence that custody shouldn’t change and should instead remain with you.

But custody could go down another path. A couple other paths. I’m concerned, specifically, with you impoverishing yourself in able to keep custody, which could backfire. If you accept less than you deserve, you may find that it is difficult to afford a home that is suitable for your children. If you wind up homeless? Yeah, it would be impossible to keep custody. No judge would find that it is in a child’s best interests to live in a car.

Meanwhile, your child’s father has all the things you waived, so he could set up a reasonable home. That doesn’t set you up for success at all, but gives him a lot of the tools he’d need to create an environment that would give him the custodial edge – getting all the things in the divorce, and then taking your children, too.

That’s extreme, but I’ve seen plenty of women willing to impoverish themselves by waiving an interest in his retirement, the home, spousal support, or all of the above in order to get him to agree to give up custody. The number of men who are willing to negotiate that way are, frankly, shocking to me – but perhaps they’ve been advised that this is a good course of action for them. Obviously, getting all the assets puts you in a better position for life, but it may also really improve your odds for custody too. Whereas before (if things were divided equally), he might have had a good shot at shared custody, if he gets all the things and you’re left unable to support the children, he could wind up with all the things AND primary physical custody.

Of course, it’s fact specific. And it may very well be that you wouldn’t be impoverished to that degree. But, either way, it creates a disproportionate award of assets that likely won’t serve you well in the years to come.

Even if you’re not impoverished, he can still petition to modify custody later when any change in circumstances comes up.

How often can a parent claim that a material change in circumstances has taken place?

Typically, courts don’t like to re-hear custody and visitation cases before 6 months to a year has passed since the last determination. But a material change in circumstances could be broadly construed, especially if something big happened that really alters things for the children.

Changes can happen fairly often. Petitions can be filed pretty abusively, too – especially if he knows that you don’t have the money to fight them. There’s nothing I can do (or any attorney can do) about him filing petitions, even if his purpose is chiefly to harass you.

The best advice I can give you? Make sure you get what you deserve in the divorce, so that you have the resources you’ll need to handle whatever comes up after the divorce. With custody and visitation, it can be a constantly reoccurring problem. Even if that means you give up some parenting time now (which, frankly, you probably will), you’ll put yourself in a stronger position in the long run.

And, hey? If he doesn’t exercise his time, if he makes bad choices while the children are present, if he moves away, or whatever – YOU can always petition for more parenting time, too.

For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.

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