Why You Probably Shouldn’t Fight for Sole Custody

You and your spouse are splitting up. Maybe they cheated on you. Maybe they spent more time with their friends than at home. Or, maybe you just drifted apart.

Custody X Change is software that creates professional parenting plan documents and parenting schedules.

Make My Schedule and Plan Now

Either way, you’re not going to be married anymore. But, you have children together. How will you handle that once your divorce is finalized?

Are you going to try and punish your soon-to-be ex by pushing for sole custody? Or, do you feel you are by far the better parent and your children would be better off with only spending time with you?

Except in extreme circumstances, like if your spouse has violent tendencies, you might want to skip the push for sole physical custody. We asked six family law attorneys to explain why.

It’s all in the details

Before you start down the potentially long and costly path of pursuing sole physical custody, you should first take a strong look at your motivation. If revenge is your primary motivation, you need to take a moment and think about whether or not that’s a valid reason to keep your kids away from their father or mother.

If however you have another reason, such as a difference of opinion with their other parent on schooling or religion, you have another option.

As Randall Kessler, founder of KS Family Law and author of Divorce: Protect Yourself, Your Kids, and Your Future explains, “What should be sought is what one thinks is best for the child. If a parent wants control or decision making, especially over certain areas like education, that can still be obtained, even if the parents share joint custody. It just has to be in the "fine print". And that will likely be much easier to get agreement on than sole custody which may require a trial.”

Instead of focusing on what you can take away, spend you energy on making sure your parenting plan suits your children’s best interests.

Don’t give strangers all the power

When you start the fight for sole custody, and there isn’t a very clear reason on why it should be awarded, you most likely need to go through a trial. While you might think this is a good idea, you should think twice.

Loren Costantini, an attorney with over two decades of experience says, “The life of a child should not be determined by a Judge, Guardian Ad Litem, an Attorney for the Minor Child and/or Family Relation officers who are all strangers to the child. The parents know the child best. By fighting for custody it leaves the decision of custody to people who do not know the parents or the children. They make their decision based upon a short term study of the broken family who are put under a microscope at the worst point in time of their lives."

Costantini continues, "Additionally, all people observing /evaluating bring their own unknown biases and agendas to the table. Essentially, child custody is decided by strangers when the parents, if instructed and counseled properly, are the appropriate people for deciding the future of their children.”

Sometimes when you try to control the situation too much, you actually lose any control you previously had.

It might backfire

You have your attorney and you have your plan. You think you’re all set to get what you want: sole physical custody.

There’s only one problem. Your spouse has their attorney and their plan too.

Abby Gregory of Connatser Family Law clarifies, “Unless there is family violence or extreme circumstances, it is very unlikely that you will be appointed sole managing conservator of your child, resulting in unnecessary legal fees and the added stress of litigation. Also, seeking this type of conservatorship without cause will show the court your inability and/or unwillingness to co-parent with your child’s mother/father, and it may backfire.”

Sometimes when you push too hard for one extreme solution, and your spouse is more willing to work out a compromise, you end up looking bad in front of the judge.

Custody X Change is software that creates professional parenting plan documents and parenting schedules.

Make My Schedule and Plan Now

Sole custody isn’t always sole custody

Many parents seek sole custody assuming it means they and only they will have contact with their children once it’s awarded. That often isn’t really how it works.

Shane Neilson from Family Law Group LLP explains that in California, “It is highly unlikely that a parent will not get a reasonable amount of time with their child/children. In cases of substance abuse, regular testing can be ordered. The court can also appoint a person to supervise visits for a period of time to ensure the child’s safety. This is a regular situation.”

He continues, “Even if one parent gets an order for “sole physical custody” it is highly likely that the other parent will have some amount of visitation with their child/children. Absent a showing of harm to the child, the court will provide some visitation.”

This is common among many other states as well, so it’s important to understand exactly what it is you plan to fight for.

Save your money

While most family courts in the U.s. are willing to work out a co-parenting arrangement is a timely fashion, when a parent pushes for sole custody, it’s an entirely different matter and timeline.

Father’s Rights attorney Anne Mitchell of DadsRights.org says aside from the harm a long court battle can do to a child, “fighting for sole custody, which is not the default in any state at this point in time in our society, is very expensive. And, because it is not the default, it rarely works except under extreme, clear circumstances.”

She goes on to suggest that the money you would sink into this fight would be much better spent on your child’s college fund.

Are you ready to explain it to your children?

In the rare circumstance that you manage to convince a family court that you should have sole custody, it still might end up being more trouble that it was worth in the end. While you may have a problem with your ex, your children may not.

Eric Klein of Klein Law Group says, “The reason why a parent should not fight for 100% sole custody is because a parent should not want their children to question why dad or mom only took time for them every other weekend. Why wasn't dad in my life more? Why didn't dad take me to ball games? Why wasn't mom at my recital?”

As your children get older, they may start to blame the parent with custody from keeping them away from their other parent. Is that something you would want on your conscience?

In summary

Sole custody might not be exactly what you think it is. Before setting forth on a one way trip into a long court battle, make sure you know exactly what you’re getting into. Think about the short and long-term consequences to all the parties involved, especially your children.

And, always spent time to consider whether or not your next action is in the best interests of your children.

Custody X Change is software that creates professional parenting plan documents and parenting schedules.

Make My Schedule and Plan Now

Custody X Change is software that creates professional parenting plan documents and parenting schedules.

Make My Plan

Custody X Change is software that creates professional parenting plan documents and parenting schedules.

Make My Schedule and Plan Now

No thanks, I don't need a parenting plan