As a collaborative attorney, I am often asked “what would a court do?” Although parties in a collaborative divorce are not asking the court to make decisions in their case, what the law is and how a court may view an issue is important. It is part of the information that a client needs to understand to truly make a decision in their own best interest.
I recently attended an education series with local judges to gain an understanding of the current state of the law. In this 2 part series, I outline some of the factors a court may consider in making litigated decisions.
On parenting and custody, here are some of the considerations:
- A court first needs to establish jurisdiction and make sure they are the correct court to make a decision. This can often be a substantial (although non- substantive) part of the process.
- The first decision is legal and physical custody. Legal custody is decision making and legal parenting rights. Do you jointly make decisions on medical, education and religion or does one of you have sole rights? Physical custody outlines the parenting time with each parent.
- There is a presumption that both parents have a meaningful role in making decisions and regular contact with the children.
- All other elements of parenting are based on the best interests of the children. This is an in depth analysis that considers the developmental stage of the children, safety, and common values of the family.
- Some particular challenges in custody and parenting can be: domestic abuse, chemical dependency, high conflict, special needs of the child, reunification with an absent parent, and temporary plans with revision.
- It is rare for a child to testify in court or be asked for their opinion on parenting.
A collaborative process is a different paradigm but clients have the same legal rights as parties in court. Know what the law is and what a court may do and then make well informed decisions. A good collaborative attorney can help in this journey.