Should I file for custody proactively?
It’s scary to break up with your child’s father. Not only does the breakup itself generally carry some challenges – like moving, separating finances, the possibility of dating again, and more – but knowing that, at some point, you’ll have to work out custody and visitation is also pretty daunting.
Not every situation is highly contentious. In fact, probably more often than not, the parents involved are able to work things out themselves. I say probably here because, in this particular instance, I don’t really have a lot of experience. The people that I see are, usually, the ones who can’t just make it work on their own; the ones who need a little extra (judicial) assistance reaching resolution of their divorce or custody cases.
In this particular article, I’m referring more to parents who weren’t married but share a child in common. In a divorce context, custody and visitation are always handled when the marriage breaks down. In fact, I’ve already written several articles where I describe why it’s important to come up with a custody arrangement, rather than just seeing what happens.
A divorce is a little different than a breakup. While I usually advise divorcing people to put the time and energy into their custody and visitation arrangement, my advice is a little bit different for couples who weren’t married.
We’re breaking up. Should I file for custody proactively?
At any point, you can file for custody. With or without an attorney, and with or without a larger divorce action, you can file for custody, visitation, and/or child support in the juvenile court. We usually recommend that parents file for all three, because if petitions aren’t properly in front of the court, the judge can’t award it. If you don’t file for child support, for example, then the judge can decide custody and visitation, but can’t award child support.
You might say, “I want custody, not visitation – so why file for that?” and it makes sense. But, the thing is, if – in a worst case scenario – you didn’t get custody, you’d still want visitation to fall back on. It almost certainly won’t come to that; judges don’t generally take custody from one parent without really, really strong reasons, but it’s still unwise not to have those petitions filed when it comes down to it.
But you don’t HAVE to resolve custody, just because you’re breaking up. In a divorce, you DO have to resolve custody – it’s a requirement to finalize your divorce. Though, in a divorce, you can say generally ‘oh, we’ll work custody out to our mutual satisfaction’ or something totally lame like that, my experience is that custody provisions like that set no one up for success, and often lead to repeated trips to court to re-hash things that aren’t working out.
But, if you weren’t married, breaking up requires no formal legal procedure. You don’t HAVE to formally resolve custody, and it’s not going to create more litigation for you if you don’t. The way I see it is that breaking up is sort of the opposite scenario.
In a break up situation, you don’t have to do anything. If things are going fine, they’re going fine. Sure, it’s true – one day, he may petition for custody, visitation, or child support, or the circumstances will change so that you feel that you have to.
But, if you file now, you may just rock the boat enough that you upset your happy balance. If you file now, and ask for primary physical custody, or ask for him to have supervised visitation, or ask for child support, you may egg him on just enough that he participates in a way that you’d prefer he not. I’m not saying that you NOT ask for child support; heck, you are legally entitled to receive it! But I am saying that when you seek out the legal system to resolve your issues, your child’s father will likely feel the need to respond in kind. It may even upset the relatively happy balance you’ve established.
Is it necessary? Well, it depends on what’s driving you. If you want to relocate, you may find that you have to petition the court. If you’re fighting a lot about who has what time or how to handle the time that you do have, you may have to petition the court as well. But if you’re just thinking that it’d be nice to have custody formally resolved, I’m not so sure it’s the smartest idea.
I find that, once parties litigate custody and visitation, they’re more likely to re-litigate. Custody and visitation are modifiable based on a material change in circumstances, so it can be – unlike a divorce – litigated over and over and over again, until the child(ren) turn 18. So, if you upset the apple cart now, you may find that it’s a long, long road ahead.
I’m not saying don’t file. Of course, a lot will depend on your individual circumstances and what you’re hoping the court will do. It also depends on what your child’s father is wanting or expecting from you, and whether you’ll be able to meet those expectations over the long term. If there are other issues – mental illness, drug or alcohol addiction, abuse and neglect, challenges blending families, or whatever else – then you may have to eventually lean on the court (or heated negotiations with lawyers involved) to resolve your custody case.
But do you need to go to court TODAY? If things are amicable, probably not. It’s not like getting a passport where, at the end of the day, you have a really helpful document and no real inconveniences except renewing it after ten years. When you poke the custody bear, there are often unintended consequences.
What’s the rush, anyway? If things are fine, they’re fine. You can work it out, at least for now. But there’s no reason to rush into the courtroom to judicially resolve something that – however difficult it may be – you’re working out between yourselves for now. A custody order isn’t something that is just ‘nice to have’, like a passport – it’s a legal document (a court order, in fact) that governs small details of your life. There’s an amount of intrusion there into your parental autonomy that you probably won’t like.
It’s not just ‘oh, it’s a good thing to do.’ It’s more like, ‘if you need it, and the two of you can’t resolve it yourselves, the court can resolve it for you.’ Does that sound kind of like a threat? That’s sort of the way I see it. In a divorce, we have to resolve custody – it’s required. And we can do a bad job of resolving custody (saying that the parents will do it themselves) or we can do a good job (give the parents a real, effective framework for how to coparent over the long term) – but the goal is always to avoid continued litigation and manage expectations.
Parents still like to think that they can just ‘work it out themselves’ because then they aren’t as restricted by a parenting plan, but that can lead to challenges.
If you DO go to court – or work with an attorney to negotiate a parenting plan – I suggest that you give it all the time and energy it requires. Don’t go into it thinking that you’ll get primary physical custody and he’ll get visitation whenever you decide that he can have it. In all likelihood, you’ll be encouraged to come up with a comprehensive plan that gives you less control than you have now. And why? Just because it’s a good thing to have?
I’d wait to go to court until the circumstances required me to go to court, if it was me. And hopefully they won’t, because you’ll be able to coparent together and work out a plan that keeps everyone’s best interests at the forefront.
For more information, to download our free custody book for Virginia moms, or to get more information about our upcoming Custody Bootcamp for Moms seminar, visit our website or call our office at 757-425-5200.