In the heat of a divorce battle, parents who are usually rational, often lose touch with what should matter most in their life – their children. Unfortunately, many estranged husbands and wives are so bent on emotional revenge or on protecting their assets, that they quickly forget that it is inappropriate to use innocent children in their quest for victory and vindication. Parents would be well advised to do all they can to keep concerns about property and children completely separate.

Think of Your Children

Studies have shown that children of divorcing parents, who express ongoing hostility and bitterness towards one another, are far more likely to suffer depression, become dependant on drugs or have major emotional or school problems. On the other hand, children of parents who manage their divorce rationally and make the children’s needs and welfare their priority are better able to avoid major developmental and the emotional problems.

Keep in mind that even though your divorce might be your worst nightmare, it is a far more devastating experience for your child-especially if they are still in their tender years. While it would be inappropriate for you to co-parent where there is or has been spousal or child abuse, and while it is also inappropriate to compromise your rights, you should, wherever possible and appropriate try to solve your children’s problems collaboratively and without litigation.

You and your spouse have the opportunity to work out all of the arrangements for your child without the interference of your lawyers or the court. Parents can cooperatively decide where the child will live, how the major decisions in the child’s life will be made, the details of the specific parenting time with each parent, and all other details relating to your child’s welfare. The court will rarely, if ever, interfere with an arrangement to which both parents have agreed.

In the event, however, that you cannot agree, you will then turn the matter over to strangers-who essentially will impose decisions upon both of you. The court, in most instances will appoint an attorney for the child (a law guardian) and will also request forensic examinations by a mental health professional. This is a costly, time-consuming and aggravating process and your entire life will become an open book.

Best Interest of the Child

In the event that the matter cannot be ultimately resolved, the judge after trial will make a decision as to what he or she believes is in the “best interest” of the child. Among the many factors the court would consider are: who has been the “primary care giver”; which parent will provide the greater parenting access; the parenting skills of each parent; domestic violence issues; the mental and physical health of each parent; the impact on siblings and depending on the age of the child, the child’s preferences. In New York, if one parent disagrees, the court cannot award joint custody. Thus, the “winner” takes all the chips. This means that the court will determine the parent with whom the child will live, the parent who will make all decisions for the child, the time that the non-custodial parent will spend with the child, etc.

Absent issues of spousal or child abuse, severe emotional disability, continued alcohol or drug dependence, etc., it is far better for parents to work together to resolve children’s issues themselves then to leave it up to strangers. A wise judge once told me “Any decision that parents jointly, can make for their children, is better then the best decision of a judge”.