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Avoiding a Madonna style-custody battle

One of the truisms of divorce is that it’s often the children who are the real victims.

The mix of emotions associated with separation and divorce often sees parents using their children as leverage to inflict a ‘victory’ over their partner.

When I first started practising law 17 years ago, it was fairly uncommon for men to get custody of their children and even now I often hear men say “the law is on the side of the woman.”

While this might have been true in the past due to women staying at home to raise children while men went to work, it is no longer so. Just in the last year or so, I have acted in a number of cases where the residency of the child has changed from Mom to Dad.

The fact is that when deciding on where a child should live the courts aren’t there to protect the feelings of warring parents, they have one guiding principle only, and that is the welfare of the child.

It’s an issue that has again hit the headlines recently following the end of a nine-month custody battle between Madonna and her ex-husband, Guy Ritchie over their 16-year-old son, Rocco. The couple settled their dispute hours before they were due in a Manhattan court, resulting in Rocco remaining in the UK with his father rather than in New York with his mother – apparently it’s what Rocco wanted.

As hard as it might be, the first question any parent must ask is not what I want from the divorce, but what is the best solution for my child caught up in this situation through no fault of their own. As Madonna appears to have conceded, what you want is not the issue, you have to be willing to listen to your child.

If you can’t work something out with your former spouse, ask a family member or friend to mediate or go to a trained family mediator. With legal aid increasingly scarce, it really is worth considering whether your battle with your former partner is really worth the financial cost and the emotional turmoil for your children.

Having seen countless divorces involving children, the one thing I would say is don’t involve them in adult issues. You have to accept the relationship has moved on but realise that your relationship with your child must be maintained. Try to compartmentalise all the issues you are facing and adapt to life as a co-parent.

Finally, never underestimate just how perceptive children are, whatever their age. I heard one seven-year-old recently say that all he wanted from life is for his parents to stop fighting.

Bharti Shah is a leading family law solicitor. Her practice encompasses all aspects of family law with a particular emphasis on financial issues in divorce, family disputes involving children and forced marriages.