Child custody negotiations occur when parents seek to arrive at a basic agreement regarding the major issues involved in custody of their child or children during and after a divorce. The negotiations may take place in a formal proceeding, as in a child custody mediation with a trained mediator present. Or, they may also occur informally in connection with a divorce proceeding. The lawyers for the parties may act as the negotiators.

More often than not, child custody negotiations may also involve personal, informal meetings between the parents when they discuss the effects that their custody choices may have on their child, any custody arrangement and their own lives.

Of course, the final arrangements for child custody are determined by a judge, not the parents, in the judge’s final order at the conclusion of the dissolution process. However, the judge may well incorporate an agreement reached by the parents, if the judge is satisfied that it serves the best interests of the child or children.

On the other hand, if the judge feels that the parents have arrived at a resolution that is completely inappropriate, the judge may order something different. The standard that a judge applies to a decision regarding child custody is the child’s best interests rather than what is beneficial for either parent.

During negotiations, possible choices identified can be presented to a judge to assist the parties in their evaluations. It probably pays for the attorneys for the parties to consult a judge along the way, so that negotiations do not produce a plan that proves to be totally unacceptable to the judge in the end.

What Issues Are Discussed in Child Custody Negotiations?

During the negotiations, the parents of the child or children would discuss important questions in connection with child custody, such as:

It is important that both parties proceed with negotiations in a manner that is cooperative and realistic.

What Is the Legal Standard for Determining Child Custody?

As mentioned, determining what is most beneficial to the child is the goal of a judge in deciding child custody. While the interests of either parent is not paramount, of course the court may consider the circumstances of the parents.

During child custody proceedings, a judge is going to apply the following standards in deciding on child custody:

  • Best Interests of the Child: This standard directs a court to determine what type of child custody and visitation arrangement is best for the child. The list of factors that a judge considers may vary in different states. Twenty-two states and the District of Columbia, have statutes that prescribe the factors that a judge must consider to ensure that decisions on child custody serve the child’s best interests. In most states, however, factors such as the following are considered:
    • The Needs of the Child: The emotional and physical needs of the child would be important;
    • The Parents’ Ability to Care for Child: The ability of each parent to care for the child is an important factor. The ability to care for the child would be shown by evidence regarding which parent has been most involved in the care of the child or children in the past. Especially if children are young, judges frequently give preference to placing sole custody with the parent who has been the primary caregiver in the child’s life. The ability to care for the child includes the ability to provide food, shelter, clothing, medical care, education, emotional support, and parental guidance. The physical and mental health of the parents are taken into account as well;
    • The Wishes of the Child: Some courts also consider the wishes of the child, usually if the child is older, e.g. a teen, and it is appropriate to ask the child to communicate their wishes;
    • Stability in the Home: A judge would weigh the stability of each parent and the home they can provide. It is considered best for the child if they can stay in the same school and same neighborhood. A guiding principle in child custody determination in 28 states is avoiding removal of the child from their home;
    • No Denial of Access: Judges would generally not favor an arrangement in which one parent is denied access to the child or where visitation would be difficult;
    • Plans for the Future: The future plans each parent has for the child would be taken into account. So, for example, if one parent has a plan to move a great distance away for any reason, this might be viewed negatively. Of course, a parent could also;
  • Presumption in Favor of the Status Quo: The “status quo” is the parental arrangement that existed before the child custody hearing in a dissolution proceeding. In many states, judges are likely to give preference to a child custody arrangement that is very similar to the one that already exists. This is so that the court does not introduce any dramatic changes in the life of the child. Consistency in the life of the child is the goal. So, either party would need to convince the court that the present arrangement needs to be altered, if that is their belief. If this cannot be proven, then the judge is likely to issue a child custody order that leaves the then current arrangement largely unchanged.

A judge would certainly consider any past incidents where the child has been harmed at the hands of or while in the care of one of the parents. If the child is 12-years-old or older, the judge may also take into account the child’s preference regarding where they wish to live.

Although the judge investigates each case to ensure the safety and wellbeing of the child, the court wants to find an arrangement that allows the child to have relationships with both parents if that is appropriate.

The main point is that during child custody negotiations, parents should keep in mind the factors that a court is going to consider. The parents would do best in the negotiation, if they honestly address the factors that their state’s courts would take into account. They should make a good faith effort to resolve the issue in a way that serves the best interest of their child.

Are There Factors That a Court Would Not Consider?

Three states also list in their statutes on the subject factors that courts should not consider when making their best interests analysis. For example, Connecticut law states that a best interests determination should not be based on consideration of the socioeconomic status of the birth parent or a caregiver. Delaware prohibits courts from making the assumption that one parent is better qualified than the other parent to have custody because of their sex. Idaho prohibits discrimination in child custody decisions on the basis of a parent’s disability.

Do I Need a Lawyer for Child Custody Negotiations?

If you are going to negotiate a child custody plan with your former spouse, you should consult with a child custody lawyer. Your attorney can help you during negotiations, so that the best interests of your child are served.

Your lawyer will be familiar with the local court and how it views the issue of child custody and such options as joint or sole custody. Of course, in the end, it is up to the judge to finalize a child custody order. However, if negotiations are done well, they can result in an agreement that a judge is likely to adopt.