Dear Readers, Last week, we started exploring custody issues for a military Husband seeking a possible divorce from his “cheating� Wife. This week, we continue by examining “primary physical custody� issues.

There is really no magic formula distinguishing a shared custody result from awarding primary custody to one parent. A parent clearly established as the “primary caretaker� would certainly be favored for an award of primary custody. Still, this decision tends to hinge on individual judicial philosophy; which may vary from case to case. In other words, the same judge may award shared custody in one case and not another, with no apparent logical reason for the differing result.

The judge does have one guiding principle – Do what is in the “best interests� of the minor children. To discern this, a judge will consider information presented by the parties from a variety of sources and, if the children are old enough, even from talking privately to the children in chambers. However, at the initial temporary hearing (roughly 4 to 6 weeks after filing the divorce complaint), each party is limited to one witness (other than the party) and an unlimited number of witness affidavits (sworn statements). However, it is unwise to rely too heavily on affidavits as most judges treat them with great skepticism.

As to our Military Reader, in presenting your custody case, you can certainly introduce general character-like testimony about what a good parent you are and how much your children love you; and, of course, the opposite about your Wife. From what I have seen, though, this sort of testimony is not particularly persuasive. Similarly, your Wife straying from you, and/or bad relations between the two of you, also may not be all that compelling in determining what is best for your children. Unfortunately, the mere fact that you are in the military, with a potentially unstable future, will work against you – most judges are reluctant to award primary physical custody to an active-duty parent.

Despite this “prejudice� against you, the Judge will be interested in getting at the “truth� of who seems to have bonded more with the children. In doing so, the Judge will want to hear about facts like who gets the children ready for school in the morning, off the bus in the afternoon, comforts them when they are hurt, and helps them with their homework. While it will be hard to prove this by anything other than your own testimony, you may find support from non-family caregivers (teachers, coaches, religious figures, doctors) to confirm the accuracy of your self-description.

Finally, you should consider witness testimony (including your own) about specific incidents or events. Here, you would concentrate on instances starkly illustrating either you are the better parent (showing that you are your children’s rock for guidance, love and affection) or your Wife is not, from your Wife’s inappropriate conduct in front of the children (such as drunkness, adultery, yelling at you, and the like), to poor discipline behavior, even bordering on child abuse.

As noted above, working against the military parent is the inherent instability of being subject to a TDY or base change. However, military marriages typically are not prone to contrasting parenting skills. Military parents tend to treasure their time with their children and be very pro-family, making them excellent parents. Again, I do not have enough information to offer you any firm opinions. Hopefully, though, I have given you some helpful guidance. All that is left is to wish you, and most importantly, your children, the absolute best of luck.