Sole custody is on the top of some people’s wish list when they start a divorce or a custody battle. But taking that issue all the way to trial may be more trouble than it’s worth.
A potential client, call her Amy, sits across from me in my office. She is upset. We’ve already had to break out the tissues as she described to me what happened. Her relationship with her husband Brent has broken down and she needs a divorce. She has moved her children out of the home and they are staying with a family member until things calm down. She doesn’t know what to do and never thought it would come to this.
Then I ask the key question:
“If you could wave your magic wand and have custody awarded exactly the way you want, what would that look like?”
Amy’s sadness turns to anger. She’s done everything for these kids, she says. Brent doesn’t deserve anything.
What Does Sole Custody Mean?
Whether she realizes it or not, Amy is asking for two different things: sole legal custody and suspension of parenting time. Some attorneys will also refer to this second part as “sole physical custody.”
Legal custody is the ability to make decisions for your children. Awarding Amy sole legal custody would cut Brent off from any say in the child’s education, medical care, and religious upbringing.
Physical custody refers to where the children spend their time. In order for Amy to be awarded true “sole physical custody,” Brent’s parenting time would have to be suspended, which would mean he would never see his children.
Courts Don’t Like to Grant Sole Custody
Michigan law assumes that children will benefit greatly from having a relationship with both of their parents. Because of this, most judges are very hesitant to award sole custody. Instead, they will do what they can to keep Amy and Brent both involved, to the extent that is in the best interests of the children.
That is not to say it cannot be done, but sole custody should be reserved for the most serious situations. For example, I recently received sole legal custody for a client whose husband had a severe mental illness, had abused her, and was involuntarily committed for a time because of his inability to control his actions. If one of these elements had been missing, or if there was reason to believe his mental illness was under control (he was refusing medication), I doubt the judge would have agreed to award sole custody.
Demanding Sole Custody Looks Bad
If Amy insists on sole custody in her divorce, it could come back to haunt her. That is because one of the 12 Best Interest Factors in deciding custody is the extent each parent will encourage the relationship between the children and the other parent. If the court becomes convinced that Amy is trying to alienate or cut Brent off from his children, it may count as a strike against her. If the other facts don’t clearly support Amy’s desire to shelter her children from Brent, she will end up looking like the worse parent.
Sole Custody Battles Cost More
On top of the legal ramifications, if Amy demands sole custody of her children, she should expect her divorce to cost a lot more in legal fees. Very few parents will agree to being cut off from their children, so Amy needs to expect that there will be motions for parenting time, lengthy Friend of the Court hearings, and in some cases a full trial on the issue of custody. All of that adds up to a lot of legal fees.
Sole Custody Hurts Children
While Amy and Brent fight over custody, their children will inevitably be among the casualties. As hard as parents may try to hide the emotional impact of divorce from their children, they will still be able to sense something is wrong. If one parent suddenly disappears from their lives, children may face serious psychological risks themselves, including separation anxiety, self-blame, and depression. One recent study even tied sole custody to increased drop out rates and worse educational outcomes.
In the heat of the moment, it might be easy for Amy to think the best thing for her children is to cut Brent out of her life and the lives of her children. But this all-or-nothing mentality does more harm than good. Amy and parents in her situation need to look at the bigger picture and decide whether sole custody is really what is best for their children, or if they are taking the easier way out.
Lisa J. Schmidt is a family law attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents parents in divorce and custody actions and helps them determine the custody and parenting time arrangement that is best for them and their children. If you are facing a tough custody decision, contact Schmidt Law Services today for a consultation.