Kate Ward
June 23, 2009 AT 02:44 PM EDT

Viewers may not have been shocked to hear Jon and Kate’s Gosselin’s divorce announcement last night, but most are left pondering a serious question: What will happen to the couple’s children if the break-up is indeed final? On the show last night, Jon and Kate said the children will continue living in the house the couple bought last year, but the parents will “flip-flop,” as Kate put it, depending on who has visitation rights.

Both parents seem committed to doing what’s best for the kids, but if there does turn out to be a custody battle, things may not be so simple. “I can’t recall a case where there were eight kids,” Los Angeles divorce lawyer Lynn Soodik says. “But let me just tell you this: If Jon gets four and Kate gets four, that’s not fair. So it’s not like money that you equally divide, because it’s not your right to have the children in an equal division. It’s what’s best for the children. And usually, they don’t split up siblings unless there’s a very specific reason to do so.”

At face value, simply being the kids’ mother gives Kate an advantage in a custody battle, but as celebrity divorce lawyer Raoul Felder points out, that certainly is not always the way it plays out. “The fine print says it’s women — mothers usually get custody of children.” However, he adds, “I think some judge would want to consider who was the moving force in this theatrical enterprise that they got the kids involved in. I think it’s going to be a bad mark for whoever it turns out to be.” Soodik agrees: “You probably know yourself couples with kids where the dad is a much better parent than the mom, and other times, you’re lucky the dad even knows the kids’ birthdays. It really depends on what’s been the best interest of the children.”

Although viewers have formed opinions on who the better parent would be from watching the show, the heavily-edited Jon and Kate footage should not figure into the judge’s decision. “The judge can’t even consider the show,” Soodik says. “Because that’s not really evidence before him or her. Who knows what goes on in an editing booth. For example, let’s say a mom is a fabulous mom, but one day, does something bad. That might be what’s on TV. It’s not a good way to judge, because what is entertainment is not necessarily what happens the majority of the time.”

“I must say, I saw the show a couple of times,” Felder says. “I wasn’t particularly impressed, because it looks like they’re both performing for the camera.”

More on ‘Jon & Kate’ divorce:
Ken Tucker’s Watching TV blog: ‘Jon & Kate’ minus a marriage: They’ll divorce, and ‘I will survive and they will survive’

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