8 Common Child Custody Myths
Clients often walk into my office for an initial consultation with preconceived ideas about child custody and their rights as parents. Many are surprised at the legal definition of custody and what judges consider important when making custody decisions. Differentiating fact versus fiction when it comes to custody determinations is critical to help you achieve a good outcome in your custody case.
But first: What is custody?
Indiana (like most states) recognizes two types of custody: legal custody and physical custody. Legal custody has to do with which parent is authorized to make major decisions on the child’s behalf (like those impacting religious upbringing, medical care, or education). Physical custody means which parent has the child for a majority of the time. The parent who has physical custody is generally called the “custodial parent,” and the other parent is generally called the “noncustodial parent.” The time that a noncustodial parent spends with the child is called “parenting time.” Here are some common myths that circulate about custody and parenting time:
MYTH: The mom always gets custody.
REALITY: The law doesn’t favor one gender over the other in deciding custody. Judges decide this issue by looking to the “best interest of the child,” which they determine by considering eight specific factors that are set out in the law. For more information on those factors, check out our free Family Law Basics e-booklet, available for free download at huettnerlaw.com.
MYTH: What I post on social media won’t come back to haunt me in my custody case.
REALITY: You can guarantee that your ex-spouse’s (or soon to be ex-spouse’s) lawyer will look you up on social media. And, under some circumstances, information you post on Facebook, Instagram, Twitter, TikTok, and other social media can become evidence in court. This means that the judge deciding custody may be privy to your social media posts. Consider deactivating your social media accounts during your custody case, or at a minimum set your privacy settings to high and do not post anything you wouldn’t want to become Exhibit A in court.
MYTH: I have a right to know everything going on in my ex’s house.
REALITY: What happens in your ex’s home is only your business to the extent it impacts your children’s wellbeing. And, keep in mind, the Indiana Parenting Time Guidelines specifically state: “A child shall never be used by one parent to spy or report on the other.” Check in with your children about how their time with the other parent went, but don’t grill them for every detail.
MYTH: I don’t have to support my ex’s relationship with our children.
REALITY: Both parents have an important responsibility to support their children’s relationship with the other parent (except in certain situations involving abuse of the children). In fact, the Indiana Parenting Time Guidelines require: “Each parent shall encourage the child to respect and love the other parent. Parents shall at all times avoid speaking negatively about each other in or near the presence of the child, and they shall firmly discourage such conduct by relatives or friends.” The judge may consider whether you badmouth your ex to the children or seek to alienate your children from your ex when making a custody determination.
MYTH: If my child cries or doesn’t want to leave for parenting time with my ex, then I can cancel parenting time.
REALITY: Depending on their ages and personalities, some children have a harder time with changes and transitions than others (for more information on this topic, see the book I co-authored with a child psychiatrist: Divorce and Co-Parenting: A Support Guide for the Modern Family). Just as you have a responsibility to support your children’s relationship with your ex, you have a responsibility to support and facilitate the other parent’s time with the kids. This means you cannot cancel parenting time just because your child says he doesn’t want to go. If your child consistently has an extreme reaction to leaving with the other parent, counseling may be appropriate. If you are concerned that your child is reacting to abuse that may be occurring in the other parent’s home, discuss this with an attorney immediately.
MYTH: My ex isn’t paying support, so I don’t have to let my ex see the children.
REALITY: When a parent doesn’t pay support, this places an undue financial burden on the other parent and, ultimately, hurts the children. This is a significant problem. Even so, you cannot withhold the children as a way of forcing your ex to pay support. This type of “self-help” remedy will get you into trouble with the court, and you may have to pay an attorney to help get you out of it. Instead, you should talk to a lawyer about filing a contempt petition (or otherwise involving the court) to cause the other parent to pay support. In some cases, you can ask the court to order the non-paying spouse to pay your attorney’s fees to get the court involved. Courts have many ways to cause a nonpaying spouse to pay support.
MYTH: The parent who gets physical custody is the “real” parent, and that parent’s home is the child’s “real” home.
REALITY: This is a commonly expressed belief I hear often. It is also totally false. Your children need both parents. The noncustodial parent is not a backup parent and his or her home is not a backup home. The law recognizes, in no uncertain terms, that the time children spend with the noncustodial parent is a “precious privilege” (and, yes, those are the exact words). The noncustodial parent may have less time, but it is invaluable time.
MYTH: If I don’t fight for full custody, my children will think I don’t love them.
REALITY: Custody, understandably, is an emotionally-loaded issue. Parents in a contested custody case often feel like their quality as a parent is on trial. Parents who are not awarded custody often feel like they were found to be a bad or lesser parent (although this isn’t the case). Similarly, I often have clients express concern that if they agree that the other parent can have primary custody, then the children will feel like they “gave them up” or didn’t love them enough to “fight for” them. Keep in mind that custody is all about your child’s best interest. If you work crazy hours and you would have to put the kids in daycare most of the time if you had full custody, then it may not be in your children’s best interest for you to have primary physical custody. Same thing applies if you are struggling with your sobriety, traveling often for work, or if your kids really love the other parent’s school or neighborhood and would have to relocate if you had full custody. The most loving thing you can do for your children is to prioritize their best interest and show up for them during the time you spend together. There are many ways you can keep in touch with your children on a daily basis so you can remain involved in their day to day lives (cell phones, Facetime, Skype). Custody agreements can be drafted to specify that you will have daily contact with your children at reasonable times for reasonable durations over the phone or computer.
Custody determinations are fact-sensitive. For more information about your specific custody issue, call us today at 317-297-2801.
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Check out our recent post on Custody, parenting time, & COVID-19.
Legal Disclaimer: This article is not legal advice and is not a substitute for talking to a lawyer. If you have a specific question about the law and how it applies to your family, talk to a lawyer. Do not act or refrain from acting based on information contained in this article.
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