Question 13
Who will get custody of the children if we separate?

Default answer:  The mother.  In most jurisdictions around the world,
the marriage law and court practice assume
that if the parents divorce, mothers can best care for their children.
So the courts have routinely given custody to mothers
based on this assumption, without any further investigation
to see if the father might be better qualified to care for the children. 
It was automatically assumed that being with their mother
would serve the best interests of the children.

     Historically, court systems have not spent much time
discovering the facts about each divorcing couple and their family.
Usually the divorce judge simply followed precedent
—giving the children to the mother—
unless compelling reasons were presented for awarding custody to the father.
The quickest and easiest way to settle a custody dispute
was to give the children to the mother—with visitation rights for the father.

     One way to discredit a mother was to show
that she had a new relationship with a man—without being married to him.
Any unconventional relationships made her an "unfit mother".
Some states have moved away from this form of thinking.
Instead of probing the mother's sex-life
—and automatically approving of her getting married again—
judges are able to ask with an open mind what is best for the children.

     Joint custody is replacing the assumption that the mother is the best parent.
But even with joint custody, the mother usually gets physical custody.

     Sometimes lawyers are employed to argue
which parent is best qualified to take care of the children.
And at least in the past, such lawyers
have depended on conventional stereotypes to support their case.

     The law and the courts usually impose
the financial responsibility to provide for the children on the father.
This is based on the assumption
that the man is the primary wage-earner in any marriage.
And many states have passed laws telling judges
what percentages of the man's income must be given to his ex-wife
for child-support, depending on his level of income
and the number of children to be supported.

Question 13:       WHO WILL GET CUSTODY OF THE CHILDREN?       by James Park       73

     But as a matter of historical fact,
the amount of child-support ordered by the judge is often irrelevant.
After a few months most mothers receive less than ordered by the court.
Some states are trying to remedy this problem
of non-compliance with court-ordered child-support
by instituting automatic payment systems,
based on payroll-deductions just like other kinds of withholding.
Then it does not depend on the responsibility
and good will of the father to write a monthly check,
a process that often gets entangled in other disputes
between the divorced spouses, such as how the money is being spent,
visitations rights, & new men in the woman's life.
Such payroll-deductions will have to become national to prevent
reluctant parents from moving to another state to avoid paying child-support.

Creative answers:  The first answer most couples give when asked
who will get the children in case of divorce is "We won't get divorced."
50% of these optimistic couples will ultimately divorce.
So even tho you are 100% certain that you will never divorce,
it is wise to discuss what would happen to your children
if this 'remote' possibility ever becomes a reality.

     If you write your child-custody decision before having children,
you will be much more careful about having children in the first place.

     If you decide in advance who will get the children
if your own relationship breaks down irretrievably,
you will not have to face the additional trauma of a child-custody battle
if and when your relationship comes to an end.
If you have planned for this contingency,
even tho you think it is extremely remote when you marry,
you will be much better prepared to carry forward your decisions
if and when the time comes when you "no longer love each other"
and/or you do not want to continue living together.

     Advance planning for custody of your children
can keep this issue out of the hands of strangers
—which will happen if you make no plans for custody.
Without an advance agreement, a judge will decide custody.
The judge will know nothing about you before you decide to separate.
And he or she will likewise know nothing about your children.
You—the divorcing parents—might not be able to reach
a rational and wise decision about your children
in the midst of the emotional trauma of ending your own relationship.


Above you have the first two pages of Question 13 from Designer Marriage.
The next 3 pages explore other possibilities for child custody.

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Designer Marriage: Write Your Own Relationship Contract

Created April 5, 2009; Revised

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