Who will win custody of the children?

The fact is that in 90% of cases in the United States where parents have decided they will not parent together, the parents are able to come to an agreement regarding child custody and visitation arrangements. However, the remaining 10% of cases where a court is involved can be devastating for parents, children, the extended families, and even for professionals involved in their cases.

Because of the high potential that a custody battle can have long-lasting negative impact on children, most states have instituted as many safeguards against that possibility as possible. In general, all child custody decisions are to be based on “the best interests of the children.” In many states, even in those cases where the parties have signed an agreement regarding custody and visitation, they are asked during the final proceedings whether they believe the custody and visitation arrangements are in the best interests of their children. Safeguards in place include:

In many states, parents with a child custody dispute are required to attempt mediation of the custody issue before a contested custody case may go further

In some states, in any contested custody matter, the court must appoint a guardian ad litem, an attorney whose role is to represent the best interests of the child during the course of litigation

Sometimes the courts order “custody evaluations” which are investigations and reports from impartial professionals with specific training for the task, usually social workers or mental health professionals

In some states, depending on the age of the children, courts allow children to have some input into their custody decisions

All states have a long list of statutory factors that the court must take into account prior to making such determinations

What happens when a custody or visitation order is violated?

The consequences for violating child custody and visitation orders almost always correlate to the magnitude of the violation. For instance, if a parent is a few minutes late in arriving to pick up a child at the time for exchange, even though it may happen repeatedly, it is likely there will be little or no consequences for this minimal violation. For the most part, a few minutes difference in arrival time will not endanger the children in any way. On the other end of the spectrum, of course, is the situation in which a parent fails to return the children at the designated time and disappears with them with no trace for days, months and sometimes even years.

At the lower end of the spectrum of violations, most states do not provide much assistance to parties trying to force compliance with a court order. Often a parent, frustrated by such behavior from the other parent, may merely have to have ready a ‘plan B’ that insures the safety of the children while allowing the parent to minimize the inconvenience of the repeated tardiness or other minor violations.

At the upper end of the spectrum, depending on how long the children are gone and whether the parent has crossed state lines, and at even the middle of the spectrum, the full force of both state and federal law enforcement is enlisted to protect children and penalize offenders. It should be noted that the violation must demonstrate a criminal intent to withhold or conceal the child from a party with the right of custody before law enforcement considers a crime to have been committed.

All states have procedures for seeking enforcement of a court order through contempt proceedings. These procedures generally require the assistance of an attorney. Most courts look very unfavorably upon violations of its orders, typically providing a remedy for the other parent. Courts have been known to alter a custody or visitation schedule completely in response to a parent’s significant or repeated violation of their order.