When parents of underage children divorce or break up, they all too often engage in a merciless fight over "who gets the children". This fight, however, has no winner – quite to the contrary, it may end in one of the greatest defeats in your life. Let's have a closer look what "winning" entails in practice.
Our clients approach us with a great variety of legal disputes – and without fault, they want to prevail over the opponent. Which is rather logical. Clients with family-law issues are driven by the same motivation. They, too, want to attain a goal, whether it be sole custody, or shared physical custody, or a maximum amount of child support payments, or, conversely, the smallest possible child support payments – the main thing is to "beat the adversary". Legal theory would beg to differ: custody proceedings in fact belong to the category of proceedings known as non-adversary proceedings. In practice, however, such proceedings often escalate into all-out war. It is rare for the participants to realize that prevailing in court in such cases need not be a victory for anyone. Custody proceedings are peculiar in that all parties – i.e., the newly separated parents and the court – shall primarily be guided by the interests of the minor in trying to find a solution. Small children often have no idea yet what their interests may be, and would not be able to enunciate them if they did. Who, then, is to determine these interests?
If the parents are able to reach an understanding, then they are the ones who get to say what the child's interests are – in the form of what is known as a parenting agreement or parenting plan. They determine who raises the child and when, and who cares for the child and when; they modify and adjust these decisions as the child grows up to reflect its changing needs. In such a case, the child has parents who live separate lives but who are still able to give their full attention to his or her needs and interests. There is far less tension in the relationship between these three people, because the parents managed to come to terms and to create a shared playbook for themselves and for their child from day one. This, and only this, deserves to be called a victory in family law.
If the parents prove unable to come to terms with respect to childcare and parenting, then a true battle ensues, culminating in a top-down court order which stipulates what custody rules will apply. The decision on the best interests of the child is thus passed by someone who does not know the child at all. Such court proceedings are moreover drawn out over several years during which no fixed custody arrangement exists – at best, a preliminary injunction applies (which, however, must not anticipate the outcome of proceedings by definition). The uncertainty and the lack of clear rules triggers additional disputes between the parents – and the brunt is of course borne again by the children.
But even a court judgment does not spell victory, not even for the parent who was "served justice" (whatever this may mean under such circumstances). This is because the other parent almost always appeals the judgment, and the custody arrangement thus does not attain legal force. The day-to-day lives of the involved parties thus remain unchanged as if no judgment had been handed down. Only the appellate ruling will deliver fixed parenting rules (and that's unless the court of appeals returns the case to the first-instance court for a "retrial"). Alas, in the meantime, the child has grown, ergo, the circumstances have changed, ergo, the one parent who is unhappy about how things have played out has grounds for filing a motion with the district court for a modification of the custody arrangements – and you may bet they will play this card. Both parents could have been deeply involved in, and drawn deep satisfaction from, these precious few years in their child's life but voted to spend their time and energy in court instead, competing over who is better at washing their ex's dirty laundry in public. This is hardly a victory – even if the court accommodates one of them and grants their motion as it stands.
An understanding can be reached even if you may think the situation is hopeless – and such an understanding is the only way to attain a swift, final custody decision, without protracted proceedings, without hurtful mud-slinging, without a long march through the appellate courts. Our experience is that even a rickety, makeshift, roughshod arrangement can have the power to improve the relationship between the parents and help create a relatively stable environment in which to bring up their children. We strive to show our clients that only a parenting plan creates instant rules on custody and childcare, and gives them much-desired and much-needed certainty. If the client insists that the rules must change, they may after a certain time file a motion for an adjustment of the custody arrangement by fiat of the court. However, parents will surprisingly often opt to stick to the initial arrangement. True, it's not what they originally wanted – but they have learned in the meantime to work together and to make amicable ad hoc arrangements in accordance with the practical needs of everyone involved. The above-mentioned motion needs no longer to be filed, because the parents are ultimately quite happy with how things played out.
In short, if you are prepared to go into battle over your children, remember to take into account also aspects which are not self-evident at first glance. Many have found out that the worst mutual arrangement may still be better than the "best" court verdict.