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Custody Catch Phrases

The terms "co-parenting" and "best interests of the child" are phrases that are part of our daily language in the world of custody and family law. They are also commonly thrown around as weapons between divorcing parents, often without any real tie-in with their intended meaning. As a professor once told our class, they are terms of art, so we should use them artfully!

Think of co-parenting as the Golden Rule. Do unto your spouse as you would have done unto you. Don't think you need to tell her about the dentist appointment? Do you expect the same in return? Is there an excuse you feel validates not sharing your child's report card with your ex? Frankly, it's probably not going to sound very good from the witness stand in court.

Co-parenting requires true compromise and a willingness and comfort level to give far more than you get (or at least feel that you are). Co-parenting requires allowing your child's needs to have both parents in his life as the ultimate goal, even when it means missing or exchanging time with your ex. Truly great co-parenting is probably as aspirational as much as obtainable, though I've witnessed many great couples who serve as role models for what great co-parenting can look like. One thing noticeably absent from those dynamics is the use of terms like "co-parenting" and "best interests of the child": neither term gets used or defined by the couple because there's simply no need.

Best Interests of the Child is a legal standard used in determining issues such as custody and visitation. It is codified in OCGA 19-9-3. If you review the statute, you'll quickly find that it is far from a formulaic process. The factors themselves are rather exhaustive and Judges can weigh them all differently. Factor in the wide discretion trial judges are given in determining custody and the only exact outcome is that the only person who can truly say what is in a child's "best interest" in the legal context is the particular judge assigned to a particular case. We had this happen recently with two cases with very similar fact patterns involving substance abuse and cross-country moves in front of two different judges in two different jurisdictions. What was important to Judge A was not as important to Judge B, and what really moved Judge B was inconsequential to Judge A.

With no norm, how can you conduct yourself in a way that maximizes your chance of "winning custody?"  That's a tricky question because one never wins custody.  Even winning a custody battle is a loss because of the necessary battle to win it. A custody battle is never a good thing, not that it can always be avoided.  Your best approach, if you find yourself in a must win situation, is to employ co-parenting (always try to work with the other parent) to achieve the best interest of the child (what would be calmest, least disturbing, most nurturing for your child).

But just remember, whenever possible, don't leave it to the personal preferences of Judge A or Judge B.  Co-parent and work toward the best interests of your child by coming to a resolution whenever possible.

David Purvis

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