About the Author Karen A. Covy, J.D., is an attorney and family law mediator in Chicago, Illinois. She owns and operates Midwest Mediation, Inc., as well as a successful law firm that focuses on family law. Ms. Covy is an arbitrator for the American Arbitration Association and a volunteer facilitator for the Domestic Relations Division of the Cook County Court System. She is an adjunct law professor at John Marshall Law School and a member of the Association for Conflict Resolution. Ms. Covy has been a practicing attorney for over twenty years. Read more Excerpt. ? Reprinted by permission. All rights reserved. The Realities of Custody, Child Support, and VisitationOf all the battles that are waged in the war of divorce, none is more heart-wrenching than a custody fight. Battles over visitation and other issues involving what's best for the children are not much better. Children who are caught in these types of domestic combat are dragged into court, interviewed by attorneys, analyzed by experts, bounced between angry parents, and still expected to function as normal kids. While many of them manage to do so, that is more a testimony to the strength of the children than it is to any virtue on the part of their parents. Yet, most parents who are willing to fight bitterly over visitation, custody, and other child-related issues honestly believe that what they are doing is not only right, but necessary for the good of their children. In reality, these kinds of fights are anything but good for the children.Not fighting over your children is a wonderful idea in theory. In practice, keeping your mouth shut and not fighting when it comes to your children is nearly impossible. If you are like most people, you value your children more than anything else in the world. They are what is most important to you-not just in your divorce, but in your life. You want them to be happy and well-adjusted, and most of all, you want to continue be an important part of their lives even after you are divorced. At the same time, you are afraid that, because of your divorce, none of this will happen. So you fight to keep them, to control what happens to them, and to make them happy. Unfortunately, in most cases, fighting over them is what makes them the most unhappy in the long run. There are times, of course, when you have no choice but to fight over your children. If your spouse has physically abused your children, fighting to maintain custody of them (or to keep your spouse away from them unless and until your spouse has received counseling, gotten his or her temper under control, and is no longer a danger to them) is worth whatever pain or problems it may cause. If your spouse is verbally or emotionally abusive to your children, the same thing applies. If your spouse is truly mentally unbalanced or uncontrollably mentally ill, then it makes sense for you to fight to maintain as much control over your children's lives as possible. In most other circumstances, however, fighting over custody, visitation, child support, and other child-related issues is rarely a good choice. Before you can make a better choice, however, you have to know exactly what it is you are fighting for.Understanding Legal CustodyThere are two aspects to child custody-legal custody and residential custody. Legal custody is what gives you the right to make important decisions regarding your children, such as what school they will attend, what religion they will be raised in, and what medical treatment they will receive, should they need it. Residential custody refers to where the children will live most of the time. While parents are married, they each have legal custody and residential custody of their children. That is, each parent has the right to make important decisions about their children's lives, and presumably, the children live with both of them. When parents divorce, they must decide whether one or both of them will have legal custody over their children. They must also decide where their children will live. Legal custody can be either joint or sole. If you have sole legal custodyof your children, you will have the right to make most (but not necessarily all) of the important life decisions regarding your children, without having to get any input from your former spouse. You can consult with your ex if you choose, but you aren't required to do so and you don't need your ex's permission to do anything. On the other hand, if you and your former spouse have joint legal custody of your children, you will be obligated to consult with your former spouse when making these kinds of decisions regarding your children, and you and your ex will have to reach some sort of agreement on whatever decision faces you before you can do anything.Unlike sole legal custody, joint legal custody requires parents to communicate with each other frequently and consistently about anything that affects the children. In order to make joint custody work, therefore, parents have to get along. They don't have to like each other. They don't have to spend a lot of time with each other. However, they do have to be able to work together for the benefit of their children. Otherwise, having joint custody just doesn't work. Because of the level of cooperation that joint custody requires, courts are not likely to grant joint custody to parents who are fighting over the children so much that they end up going all the way to trial to get the judge to decide the issue of custody for them. If two people can't agree on who should have custody of the children in the first place, they will never be able to agree on the other, larger issues surrounding their children's education, religion, upbringing, and medical treatment that they absolutely need to agree on in order to make joint custody work. That's an important fact to keep in mind when you're deciding whether to engage in a custody war with your spouse. You need to understand that if you and your spouse agree that you should have joint custody, then you will have it. If you and your spouse can't agree that you should have joint legal custody, then one of you is going to be granted sole legal custody.While the definition of joint and sole custody seems fairly straightforward, determining what decisions regarding your children you can and cannot make on your own, even if you have sole custody, is not always easy. Obviously, if you and your spouse have joint custody, you will be consulting with each other about almost every issue that comes up that involves he children, from deciding what church they will attend to working out whether they should be enrolled in soccer or swimming after school. However, even if you have sole legal custody, you will still have to include your spouse in more decisions than you may think. If your divorce judgment requires your ex to pay for certain things for the children, such as after-school activities or extraordinary medical expenses, then the judgment probably also gives your ex the right to have some input into deciding whether you can incur those expenses in the first place. You cannot enroll your children in every afterschool activity possible without so much as mentioning it to your ex, and then expect your ex to pay for half of those activities. You cannot have an orthodontist put braces on your child's teeth without your ex's consent and then stick your ex with half of the bill. You can't singlehandedly decide to send your kids to private school, and then expect your ex to pay a tuition bill the size of the national debt. Sole custody or not, that kind of behavior just won't fly. Read more
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