Does the Mother Always Get the Kids?
Interviewer: So is it a myth that the mother always get the kids?
Gary: It is not as true as it used to be. I think there is still a presumption that the smaller the children are, the more likely the women will get the kids. It is just a fact of life that men and women are not necessarily equal. In the law, there is no presumption. The law specifically says, “The court cannot favor one gender over the other.”
In reality, if you have a child that is not even in school yet, the mother is probably going to get the kid unless the mother is not fit. If the mother is fit, your kid will probably live with the mother; again, within some very restricted confines.
Now, as the child gets older and you have a male child, I think the father’s case gets stronger as the child gets older. I think the father’s case is weaker with respect to a female child.
When you have a 12 year-old girl, I can think of only one case in my experience where the father got custody; in the absence of the mother being unfit. That case was a marginal situation. It was truly a better situation for the daughter to live with the father.
But the court is going to look at what is in the best interest of the child. I think it is very hard to say it is in a 12 year-old girl’s best interest not to have her mother right there.
It is the same way with boys. Suppose a guy comes to me and says, “I have a 14 year-old boy living with his mom. If the court reconsidered this case, all things being equal, where do you think he will wind up?” I would say, “He is going to wind up with the dad; all things being equal.”
Factors That Determine Custody
Interviewer: What factors determine whether it is 49-51%; or whether the mother has custody and the dad just sees the kids on weekends, once a week or supervised?
Gary: The best interest of the child is the main thing. The best interest of the child is the determining factor, and that is a very general factor. That could be anything, a lot of things, or all minor issues.
Generally what the court will look at is kind of like a V. There is a lot of information at the top and very little information as you drill down into the case. Ultimately, these cases turn on one or two issues.
For example, maybe one parent has a drug issue or alcohol issue. They may not be abusive or neglectful to the children, but this may be something that they are struggling with. They may have control, but in the past there were issues. These are the things the court is going to look at.
They are going to look at parenting skills. They are going to look at who has the best parenting plan for the children. They are going to look at who sat down and decided the progression of events such as, “We are going to educate the child here.”
If the child has any special learning needs, “This is how I am going to get those needs met.” If the child is involved in any sports or activities, how are we going to address the sports and activities? What is best for this child? How do you balance that with academic requirements to ensure the child is properly educated to be a productive member of society?
The court is going to look at which parent is better suited for that. They find it pretty easy in most cases to differentiate upon a minor, on this 51-49% continuum, to find one parents or the other. One of the parents is usually more mature than the other. It may be marginally, but they are. They have a better plan in those cases, and they can articulate that plan.
Part of my job is to help the client articulate these ideas, concepts and factors before a court; so the court gets the best view of my client. In most cases, both people are good and decent, and the court is going to look at them from a very even situation.
It is not as though you have the devil on one side and an angel on the other. That is very rare. Usually there are two devils or two angels.
Awareness of Parenting Plans
Interviewer: Do people even know that they need a parenting plan?
Gary: I think most people have a parenting plan. They just do not know they have it. What they need is for somebody to show them how to articulate the plan that they already have. They know what they want from their child. They know what they think is best for their child.
Now, sometimes the parents may be a little bit off-kilter. Maybe there are some issues and you need to get some counseling involved so the parent is not living vicariously through their child. Even in those cases, there is always a parenting plan. The client just needs some help articulating it and designing it so the court can understand it.