When a couple is in the middle of a San Jose divorce, the key factor in determining child custody and visitation is what is perceived to be in the best interest of the child. Older children, particularly those over age 14, may be asked for their opinion on such matters, but young children must often rely on their parents, a team of adversarial lawyers who represent their parents (not them), the overworked professionals at Family Court Services and/or Mediation Services, and the discretion of a Family Court Judge to decide the best arrangements for them. What modern divorce law often fails to do is recognize that a child’s needs change over time.
What is in the best interest of a toddler is not necessarily in the best interest of an older child. What works well when your son is in elementary school might not be the best custody arrangement when he’s a high school student. Girls and boys often have different needs and mature at different rates. Teenagers often have jobs, extracurricular activities, and relationships with their friends that they do not want upset by complications in their living arrangements. When parents remarry and step siblings or half siblings are added to the mix, family life becomes even more complicated. A one size fits all approach to child custody and visitation issues is simply unworkable.
As you’re negotiating a San Jose divorce settlement you should carefully consider what is best for your children, since if the deal falls apart and you show the Court what you bargained for (as part of a fees argument) offers to settle from you that clearly put your children first could be read by the Court. Letting the Court see who put the children first could help your case, and in fact this divorce lawyer’s exerience has been that the Courts will often take your good ideas and directly incorporate them into the Court’s ultimate rulings.
Children will often suffer emotional harm as a direct result of being put in the middle of the divorce. A parent directly asking the children what visitation schedule they want could be heard by the child as that parent asking that the child take their “side” in the divorce. Being faced with a lose-lose set of choices (time with mom is NOT with dad, and time with dad is NOT with mom) can be like placing a heavy emotional weight on a young child. If the Court finds out that you put such a burden on the child(ren) it could hurt your case, and in fact Family Courts regularly Order that neither party talk about the case with the children.
You raising difficult issues is different from you listening to your child(ren). Listen, and try to make them comfortable enought to talk to you. Children are often afraid to speak up about their needs for fear of hurting the feelings of their parents, but a child who is unhappy with the visitation and custody arrangements will often act out in ways that make life difficult for the entire family. If you and your spouse can maintain a positive co-parenting relationship, it is a good idea to plan to readdress custody and visitation schedules periodically to make sure the arrangement continues to be satisfactory to everyone who is involved.
When parents are committed to working together and being respectful of their child(ren)’s feelings throughout the process of seeking a divorce, everyone benefits. Choosing a San Jose divorce lawyer with extensive experience in family law can help you craft a settlement that is fair to everyone involved, and allows all of you to move forward with the next chapter of your lives.