Custody

Jesse Barrientes: Right.

David Siegel: It's a misunderstood topic. There's many different types. I want you to elaborate a little bit about custody, what I really means, and what the court looks for.

Jesse Barrientes: There are various forms of custody. Generally people talk about joint custody and sole custody. Sole custody means that the person, the parent who doesn't have the physical possession of the child most of the time, the parent who doesn't have that, is not going to have any input in the kind of general decisions of the upbringing of the child, like religion, school, activities, those kinds of things.

David Siegel: If I'm hearing you correctly, sole custody puts all of the burden, or the duty rather, on the person who has the child, for the health, education, religious training, extra-curricular activities, everything.

Jesse Barrientes: They call the shots. That's right.

David Siegel: And the non-custodial party, the party who has visitation, has no say in the day-to-day decision making, or even in the important events. Is that correct?

Jesse Barrientes: That's correct.

David Siegel: So sole custody would not be a good situation for say a father who wants to be involved in the decision making? That father is not going to want sole custody with the spouse?

Jesse Barrientes: That's true. However, you know, there's some other things we need to look at. Let's look at the opposite side of that coin, and that would be joint custody.

David Siegel: Sure.

Jesse Barrientes: Joint custody means the opposite, means the non-custodial parent, the person who doesn't have the physical possession or residential custody of the children most of the time, does have a say so in the day-to-day decisions, does have a say so in the upbringing of the child with respect to the activities, with respect to religion, with respect to schooling, and all those kinds of things. However, joint custody is only for people who can get along as it relates to the children.

David Siegel: That's right. I also want to clear up this misconception that joint custody means each party has the child an equal amount of the time, and that the child or children are being shuffled from house to house because they have joint custody. That's not the case, is it?

Jesse Barrientes: No. That's not the case. We'll talk in a minute about a kind of hybrid of this joint residential custody. Just like in any relationship, there's no 50/50. Sometimes it's 60/40. Sometimes it's 70/30, but in the long run, it's 100 percent/100 percent. You need that really from each party to make any relationship work. The same is true with the kids. It requires everybody's 100 percent effort. It might not be 100 percent on this particular day. It can go the other way, but that's what it requires over the long run.

David Siegel: Now is joint custody something that gets negotiated down at some point? Are a lot of cases where they start asking for sole, exclusive custody, and then in the settlement process turns in to, "Okay. I can work with him." or "I can work with her. We can share in some of the responsibilities and decision making."? Do you see that more and more?

Jesse Barrientes: Yeah. Sometimes it happens, and it depends. Perhaps sometimes after people come back from mediation, or after they've had an opportunity if one person's very steadfast on wanting joint custody and the other person is not, then if you can't come to an agreement it's going to be a trial, and the judge is going to make a decision, so it's a full-blown custody trial which is going to cost both parties a fair sum of money, and it's not going to be any good for the parties. It's not going to be any good for the kids because as I mentioned earlier, it's still going to impact them. We'll talk about the different kinds of things that we need to do, but the other type of custody you I think were talking to, and I think people are confused about that, is the hybrid of custody which is kind of what they call "joint-residential" custody.

Jesse Barrientes: It's very rare.

David Siegel: It's very rare.

Jesse Barrientes: And there's a reason.

David Siegel: There's a reason it's the exception. Those are for people who can get along, joint-residential custody. It's for people who are in a fairly close proximity. Generally it's for folks who have pretty much shared the duties where the kids are here at the one house, and there's another house that's not so far, and both parents bring the children to school and drop them off. The reason why courts are not so inclined to grant that, and they want to look, and the standard's the best interest of the children, is because they don't want a whole lot of shuffling because that's not in the best interest of the kids, for them to be shuffled from here.

They're going to have to take an hour and a half car ride over here, or 20 minutes, and they're scattered. Children need stability, and unless that's been the status quo, sometimes people are separated for a while before they get a divorce, and they kind of just live their lives and fall in to certain patterns, and that's great because they do that by agreement. In those rare circumstances that is an alternative form.

Jesse Barrientes: Right, and just as an answer to that, the court does not like to necessarily divide up children.

David Siegel: Right.

Jesse Barrientes: Where sometimes we hear cases in Joliet where the wife wants the daughter, husband wants the son. That can be very dysfunctional for these siblings to be in separate households.

David Siegel: Sometimes neither one of them wants little Johnny.

Jesse Barrientes: It's true. Each situation is unique, but generally, a general rule, in terms of separating siblings, because they have that connection.

David Siegel: Are you comfortable with custody? Can we move on to support?

Jesse Barrientes: We certainly can. I would just like to mention one thing.

David Siegel: Sure.

Jesse Barrientes: If it's going to be a contested matter and people aren't going to agree about that, the court looks at various factors. They look at the desires of the parties. Of course they really cancel each other out because you want them and I want them. Okay. They look at the wishes of the child, and the children, it just depends on the age. If the children are one or two years old, then their decision, even if they can articulate it, doesn't have great weight.

If the children are older, maybe like teenagers, then their decision has greater weight in the determination of where they're going to go, but it's still just a factor. They're going to look at any history of domestic abuse, or domestic violence in the past. They're going to look at the people that are going to interact with the child. Essentially, they're going to do that, but a lot of times what they do is the employ or appoint a guardian ad litem which is an attorney for the child.

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