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by Attorney Gordon S. Johnson, Jr.

If there are children, the issue of which parent the children will live with is the most important issue. This question used to be called custody, but now is called placement. The term custody relates to something more general and joint custody is typically awarded except in unusual cases where one parent is so incapable of either caring for the children, or getting along with the other parent, that "joint custody" is not possible. Joint custody does not mean that the children live with both parents, it means that both parents share decision making authority on very important matters, such as schooling, religion or medical care.

Since joint custody is awarded in most cases, the court must still decide where the children will live. The parent who the children live with has primary physical placement. What used to be referred to as visitation with the other parent, is now called "periods of temporary placement".

There are few ordeals in life worse than a "custody fight" in a divorce, not only for the children, but also for both parents and for both of their attorneys. They often take years to resolve, cost many thousands of dollars and leave emotional scars that may never heal. Custody fights are so bad, that even the term hasn't been changed, even though they are actually fights over physical placement. For this reason, the divorce mediation system was created to try to resolve these issues and avoid a full blown custody fight.

Now, whenever there is a dispute over custody, before the full expense and and bad feelings are brought out, both parties must engage in a series of meetings to determine whether the issue of placement can be resolved without war.


If custody cannot be resolved in mediation, then the court must proceed with a custody determination. This will require the appointment of a guardian ad litem, and usually a custody study to be performed by a county social service agency. A guardian ad litem is a third attorney, who is technically the attorney for the best interests of the child but who, as a practical matter, is there to provide the judge with a more independent perspective on which parent is preferred.

Issues the court can consider in making a custody determination. Frankly, a court can and often does consider just about anything in determining who is the more suitable parent. The statute suggests that the court focus on these factors:

The court shall consider all facts relevant to the best interest of the child. The court may not prefer one potential custodian over the other on the basis of the sex or race of the custodian. The court shall consider reports of appropriate professionals if admitted into evidence when legal custody or physical placement is contested. The court shall consider the following factors in making its determination: (a) The wishes of the child's parent or parents. (b) The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional. (c) The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest. (d) The child's adjustment to the home, school, religion and community. (e) The mental and physical health of the parties, the minor children and other persons living in a proposed custodial house-hold. (f) The availability of public or private child care services. (g) Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party. (h) Whether there is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.02 (2). (i) Whether there is evidence of interspousal battery as de-scribed under s. 940.19 or 940.20 (1m) or domestic abuse as de-fined in s. 813.12 (1) (a). (j) Whether either party has or had a significant problem with alcohol or drug abuse. (k) Such other factors as the court may in each individual case determine to be relevant.


The statute is so comprehensive, it may not help most people understand what is important. And frankly, trying to give the court a basis to choose one good parent over another, can result in downright silliness. In most cases, the most important factors would be the nature of the relationship and attachments between the parent and the children and the historic commitment to spending time with the children. The sex life of the parent, the existence of some significant other in a parent's life, should almost never get to be important, unless there is something unhealthy in that relationship. Far, far too much energy is wasted in custody fights over these issues.


The one factor that has become increasingly important, and deservedly so, is: "Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party." Bitterness, that can border on hatred, is not only common in a divorce, but understandable. But regardless of how bad a relationship between the two parents is, it is virtually guaranteed to make the transition for the children infinitely worse, if the parents try to prejudice the children against the other parent. Nothing angers judges and guardian ad litems more than badmouthing of the other parent to a child. Don't do it, don't do it, don't do it. It is bad for the child, and almost fatal to chances of prevailing in a custody fight.


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