Chapter 6 Custody Decisions and Parenting

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 6 Custody Decisions and Parenting

Physical and Legal Custody

The High Road: Agreeing With Your Spouse on a Parenting Plan

If It's Tuesday, This Must Be Mom's House: Typical Custody Arrangements

Sample Parenting Plans

How to Negotiate a Parenting Agreement

Identifying the Issues

Helping Your Kids Cope With Divorce

Telling Your Kids About the Divorce

Kids and Emotions

Kids and New Relationships

Making Shared Parenting Work.

If You Share Physical Custody

(Extended) Family Matters

If One Parent Has Primary Physical Custody

Trying to Get Along With Your Ex

When It Comes to Divorce, Grownups Are Kids, Too

There's no way around it: Divorce is hard on kids. For most parents, dealing with their children—breaking the news, trying to help them through the many transitions, figuring out custody and support arrangements, and worrying about their well-being—is the most challenging part of the divorce.

When it comes to figuring out how you're going to take care of your children during and after your divorce, you have two choices: Work it out with your spouse, or have the court decide for you based on the judge's interpretation of what's best for your kids.

No matter what you and your kids' other parent disagree about, you should be able to agree that it's good for your kids if you can minimize the conflict they witness and protect them from contact with the courts and from lots of uncertainty about the future. (And custody cases are notoriously unpredictable.)

So, the high road appears before you again. Take it, and do everything you can to reach an agreement with your spouse about parenting. It doesn't matter what kind of jerk your spouse is or how angry you are—as long as there's no verbal or physical abuse going on in your ex's house, you still need to support the other parent's relationship with the kids. (See Chapter 14 if you're concerned about abuse.) And try to do it graciously and with a positive, cooperative attitude. Accept the inescapable truth that hurting your kids' other parent hurts your kids. Sit down and negotiate a parenting plan that will work for everyone. It's guaranteed to pay off in the long run.

This chapter addresses the high road: agreeing with your spouse about custody and visitation. Chapter 7 deals with contested custody and other difficult parenting issues. Chapter 8 explains support.

TIP

It isn't just Dear Abby who says so. Research has shown that basic parenting skills like effective listening, consistent routines for kids, clear discipline that both parents participate in, and especially, minimal exposure to parental conflict can significantly help children's mental health after a divorce.

Physical and Legal Custody

The first thing you need to know about custody is that there are two kinds: physical and legal.

Having legal custody of your children means that you have the right to make decisions about their welfare—things like where they go to school, what religious education they receive, whether they need academic tutoring or psychological counseling, and when they go to the doctor.

Courts prefer that after a divorce, both parents continue to participate in making these decisions just as they did when they were married—in other words, both parents share legal custody. This is called joint legal custody. But a judge may give one parent sole legal custody if:

• There is so much hostility that parents simply can't communicate at all, even about important decisions affecting their children.
• One parent lives a great distance away.
• One parent is abusive or neglectful.
• One parent simply isn't involved in the child's day-to-day life and doesn't spend time with the child.

Finally, a few judges order joint legal custody, but then designate one parent as the tiebreaker in the event the parents can't agree.

Physical custody refers to where the children live on a regular basis. Courts generally prefer that parents have joint physical custody so that children have regular contact with both parents. Joint physical custody doesn't always mean an exact 50-50 time split. But if one parent has the kids most of the time, that parent is usually granted sole physical custody; the other parent gets the right to regular parenting time, also called visitation.

TIP

Check your state's default visitation schedule. Some states have standard time-sharing plans that courts use unless spouses agree to a different plan. You can use these as a starting point for your discussions of time-sharing and other issues. You can generally find standard orders on your local court's website, which you should be able to find by searching "[your county] family court" or something similar.

Courts make decisions about legal and physical custody separately. For example, it's not unusual for parents to have joint legal custody, but for one parent to have sole physical custody and the other to have regular visitation. Legal custody, remember, just refers to making decisions about your child's life, and you can make those jointly, no matter where your child lives.

How custody is characterized now can affect you later. For example, in California and some other states, a parent with physical custody has a presumed right to move away with the kids; to keep the kids nearby, the noncustodial parent must go to court and show that the move would be harmful to the kids. So if your spouse's attorney tries to tell you that it doesn't matter whether you let the other parent have sole physical custody even though you spend significant time with the kids, don't buy it. Check with a lawyer about whether the decision could come back to haunt you later.

The High Road: Agreeing With Your Spouse on a Parenting Plan

Many spouses disagree to some extent about how they will share time with their children. But you don't have to be on good terms or in complete agreement about everything in order to negotiate an effective parenting plan. You just need to be willing to put your children's needs first.

If It's Tuesday, This Must Be Mom's House: Typical Custody Arrangements

Divorced parents share custody in a wide variety of ways. Especially as many fathers are more actively involved in parenting than were the dads of previous generations, parents are coming up with new and different time-sharing agreements.

What will it really be like to continue parenting with your ex when you don't live together anymore? You can no longer use the fly-by-the-seat-of-your-pants method that might have worked when you all lived together, to determine who took care of what on any given day. Instead, you'll need an agreed-upon plan about sharing time with your kids, and about what your responsibilities are now.

Giving Your Kids a Say Your kids may have strong opinions about where they want to live and how much they want to visit the noncustodial parent. Very young children obviously won't have much say about custody and visitation, but older kids have their own activities, commitments, and attachments, which they deserve to have considered. Generally, they'll want to be where their friends are and will resent a schedule that interferes with their activities. (As they get closer to being tweens and teens, it's very common for kids to ask for an alternating-weeks schedule instead of going back and forth during the week.) If you and your spouse don't end up living near each other, you'll have to figure out how flexible you'll be when teens don't like the plan you've come up with.
If you talk to your kids about custody or visitation, make sure you don't pressure them. Just listen to what they have to say and tell them you'll take their views into account. Never tell them that you'll be sad or lonely if they want to spend time with your ex or live in the other parent's home instead of yours. And never tell them the decision is theirs—you can consider their input, but the adults are the decision makers.

Sole Custody and Visitation

A very common arrangement is for one parent to stay in the family home with the kids. The children spend most of their time there and see the other parent at regularly set times. In legal terms, one is the custodial parent and the other the noncustodial parent who has visitation rights. Other terms frequently used are "residential" and "nonresidential."

One fairly standard plan is the "Wednesday night dinner and every other weekend" arrangement. In other words, one parent has sole physical custody, and the other parent has visitation rights for one dinner a week and every other weekend.

Joint Custody

Some parents share physical custody 50-50 or something fairly close. But to make this work it's crucial for the parents to live near each other; otherwise kids can't move easily back and forth or continue with their regular activities. Also, carefully consider the frequency of transitions from one parent/household to the other as you develop your parenting plan. Too-frequent transitions can cause stress for both children and parents, especially in the early days after you separate.

If your kids seem to be experiencing wear and tear from the transitions, or if you're really having a hard time being in the same place as your spouse, try not to make a plan that calls for changeovers every day or two days. Instead, opt for a weekly visitation schedule, or schedule the transitions to occur after school, so that one parent drops the kids off and the other picks them up. That way you won't have to be in the same place at the same time, and the kids won't have to worry about that either.

On the other hand, if you get along okay and the changeovers aren't too stressful, it can be good for kids to feel that they really have two homes. (See tips on making this work in "If You Share Physical Custody," below.)

One schedule that is particularly popular these days is the so-called rotating 2-2-3 plan. The child is with Parent 1 on Monday and Tuesday, Parent 2 on Wednesday and Thursday, and alternates Friday and weekends. This gives each parent a...