5 Child Custody Myths, Debunked

Now that we have a better understanding of some of the details involved in a custody dispute, let’s examine five of the most common myths about child custody.

Myth 1: I’ll Have to Go to Court if There Is a Custody Disagreement

Even if there is a disagreement regarding custodial arrangements, you still may be able to settle your custody case outside of court. Alternative solutions include:

• • Informal Negotiations
    

    An informal negotiation involves both parents meeting and deciding on the custody agreement. Once the parents come to a decision, an attorney for one of the parents will draft a legal document for them to sign, finalizing the agreement. These negotiations could also take place between attorneys for each parent.

  • Mediation
    

    This is an alternative dispute resolution (ADR) process where a neutral third party helps the parents work through differences and concerns to reach an agreement. Each parent can have an attorney represent them in the mediation.

  • Arbitration
    

    This solution is more formal than mediation but still keeps the dispute outside of a courtroom. Instead of a mediator who tries to get a mutual agreement, both sides have an attorney and can hire experts as needed to support their claim. The parties present their case to an arbitrator, who makes the final decision.
    Arbitration can be binding or nonbinding. If you go through binding arbitration, the arbitrator’s decision will be final, and the court won’t overturn it except in very unusual and limited circumstances.

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Myth 2: A Child Can Choose Which Parent to Live With

Children do not get to decide which parent or guardian receives custody. However, some judges will hear from a child if the child is old enough to make a rational decision. If the child expresses an opinion, the child’s preference is only one factor for the judge to consider, and it usually only affects a decision if both parents are equally qualified to receive custody.

Children typically must be at least 10 years old to be able to talk to a judge. If a child is vehemently opposed to living with one parent, the judge may appoint a guardian to represent the child’s interests and determine what the problem is.

Myth 3: Mothers Always Receive Full Custody

Mothers don’t always receive full or even primary custody of the child. According to the U.S. Census Bureau, the number of fathers with full or primary custody is increasing every year. The deciding factor in custody cases is what’s best for the child, which courts often determine based on which parent has been acting as the primary caregiver. Actions that indicate someone is a primary caregiver include feeding and bathing the child, taking the child to school, and making doctor’s appointments.

Because many households still operate with the mother as primary caregiver, courts may lean toward mothers when awarding custody. However, some fathers act as the primary caregiver or are available to become a primary caregiver after a divorce. In these cases, the court could award primary custody to the father. In general, there is a notable trend toward more equal custody arrangements.

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Myth 4: Only Parents Can Get Custody of a Child

While courts do prioritize keeping children with their parents in custody cases, there are some situations where they don’t grant custody to a parent. Grandparents are the most likely to receive custody over the child’s biological parents, but other family members or friends can also obtain custody in certain situations.

Every case is different, and it can be difficult to establish that a biological parent shouldn’t have custody over a third party. Some of the reasons a court may grant a non-parent permanent physical and legal custody of a child are if the parent:

• • Has neglected the child
  • Has emotionally or physically abused the child
  • Will be incarcerated until the child is 18
  • Is physically or psychologically unable to care for the child
  • Has a known and serious problem with drugs or alcohol

Myth 5: I Can Withhold Visitation if the Other Parent Doesn’t Pay Child Support

Not only is this false, but the other parent may be able to change the custody arrangement in their favor if you withhold visitation without court approval.

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Never try to force or coerce the other parent into paying their share of child support by withholding the child. If the other parent isn’t paying support, tell your attorney. Not receiving the full agreed-upon child support amount is a common issue that courts know how to handle. The judge will deal with the issue and penalize the parent appropriately with fines, wage garnishment, or even jail time.