Obviously, child support is no longer the province of the wife. No longer are the children simply awarded to the wife by a court and the husband is left to the process of visitation. In fact, in many recent divorces, much of the fight has centered on the custody of the children issue. Fathers are putting up much more of a battle seeking custody of their children. Courts are far more willing now to examine such factors as the profession of the spouses, the amount of time fathers spend at home, the amount of time fathers spend with their children, the activities the fathers and mothers are engaged in with children, the environments in which the children will live after the divorce [generally based on the environment during the marriage] and many related factors.
Courts are often asked to do the impossible in trying to determine who will be better suited to have custody over the children. Also, children are often asked their preferences by judges, seeking to do the right thing. It should be remembered, however, how important the judge is in your individual case. Judicial discretion is the key to this area, and understanding how judges make these decisions might help you to understand this process.
Understanding the concept of judicial discretion is critical to understanding the impact of a court-ordered term or terms of a marital settlement agreement. Judges who receive actual testimony and evidence in in-court proceedings are considered in most areas of law to be the best judge of truthfulness. This is the case because these judges are able to observe the parties, and their witnesses who testify in the in-court proceedings. As a result, once a judge, who has received testimony and observed the truthfulness of various parties and witnesses, makes a decision at this level which affects the parties, it may be difficult to overturn or override the judge's decision. Of course, appeal lawyers specialize in these proceedings. But, as a practical matter, appeals and rehearings are difficult and expensive proceedings.
A couple who becomes obstructive and difficult with every issue in the proceeding can run the risk of alienating the judge. The effect of such conduct may make it difficult when the proceeding commences to convince the judge of the reasonableness of your legal position. Oftentimes, a spouse who appears to the judge from early in the proceedings to be reasonable and willing to compromise, will receive the benefit of the doubt in the later proceedings when the judge may make a decision and impose her/his will on the parties.
While there is no book or pamphlet that will substitute for a knowledgeable attorney representing you, simply keeping this brief discussion in mind, should one ever become involved in this type of protracted proceeding, may help in a favorable resolution of these issues. It will certainly help you help your lawyer and that could result in lower legal fees. Please remember, however, that in all but the simplest of divorces, experience dictates that a qualified lawyer be retained, no matter how civil the parties may act in the early proceedings.
Also, what understanding this judicial discretion demonstrates is that if the couple can agree on a custody program and a visitation schedule that is suitable to the court, without court intervention the couple will generally be happier with the outcome than with judicial involvement. Remember the court must still approve anything decided upon by the couple, but a predetermined outcome will almost always be agreed to by judges.
Couples should also remember that judges who become dissatisfied with the way a marital settlement agreement is working after the divorce, would usually have the power to order modifications of the original agreement. In most jurisdictions each spouse will usually have the power to petition the court, via a procedural vehicle sometimes known as an Order to Show Cause (OSC), for changes in the marital settlement agreement. This is further discussed in the section below entitled OSC's.