Are You Fighting for Your Kids or Are You Protecting Your Financial Future? By Braxton Mounteer, Legal Assistant

An accusation that gets thrown around a lot in a divorce action is that a parent doesn’t actually want to spend time with his or her children. Usually it’s an accusation from a mother against a father. She accuses him of motivated to seek more custodial time by the fact that the more time he has with the children the less child support he pays. But if a mother makes more money than the father, Dad could accuse Mom the same way.

Making the “he’s just trying to save money–he doesn’t want to be with the kids” accusation costs the accuser nothing and usually forces the accused in a posture he should never have placed in.

Consider this scenario. You love and adore your children, but your spouse is spiteful and vindictive. Your spouse thus wants to take you to the cleaners financially and so he or she petitions for sole custody. In pursuit of sole custody, your spouse accuses you of being an abusive spouse and/or parent, getting you arrested and/or made the respondent in a protective order matter, resulting in you getting forcibly removed from your home by court order during the pendency of the divorce proceedings.

You are then stuck, during the pendency of the case, with temporary orders to pay child support (perhaps also temporary alimony) while trying to find (and pay for) a separate residence while paying an attorney in the fight to spend minimal time with your children. All the while, with the exception of a few clothing items the court may let you gather up, your former spouse has all of your belongings in the house, and primary custody of your children.

How do you prove that your desire for joint custody is out of love and responsibility for your kids and that you aren’t “just trying to avoid paying support”?

You will need to fight hard, (much harder than you’d imagine, and even harder if you are a father) to prove that, for the sake of the children’s benefit, there is no good reason that you cannot and should not exercise equal custody. Courts are shamefully not generally inclined to give fathers the benefit of the doubt in this regard.

On the flip side of this issue, what if the accusations against you are true? If you are an absentee parent historically and/or you don’t really want to spend that much time with your children, then you have made your own bed and should lie in it. Your children deserve to be with the parent who actually cares for them. If you foist the bulk of the burden of child care on your spouse, then your spouse deserves the funds needed to bear that burden. You should not be left homeless and starving by crushing child and alimony obligations, but you have no right to leave your children destitute either.

While courts are slowly moving toward embracing the idea that “the best parent” is both parents, there is still a surprising amount of resistance to the idea in the legal system. If you are seeking joint custody of your children, don’t expect the court to give you the benefit of the doubt, and be prepared for to fight much harder than you expected.

Utah Family Law, LC | | 801-466-9277

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