Disagreements about parenting time and decision-making can turn nasty. Perhaps one parent wants 50/50 custody. However, the other parent feels that he or she has been the primary caretaker, the parent that has been mostly responsible for the child’s needs daily, and should have primary residential custody. Perhaps one parent is concerned about the other’s judgment and is unwilling to share equal decision-making authority.
At the end of a custody case, there will be an order. What that means is that there will be a document, signed by the judge, with a set of rules about parenting. These rules generally include: (1) how major decisions are made (discussed further in detail below), and (2) when each parent sees the children. These orders come about in two ways: (1) by agreement between the parents, and (2) after a trial, where the parents present witnesses and evidence (photographs, text messages, e-mails, etc.) to show the judge why the court should adopt their respective positions. For example, a parent who is seeking sole legal custody (the sole power to make decisions regarding their children’s upbringing) will present evidence that it would be impossible for them to co-parent effectively. A parent seeking a shared residential custody arrangement will present evidence that it is possible for each parent to have the child in their care about fifty percent of the time. Custody trials are very time-consuming, stressful, unpleasant, and expensive, both financially and emotionally.
Even if you are already in court, that does not mean that you will go to trial. Judges almost always try to help parents reach a resolution, even if it takes time. Some parents come to agreements when the trial has already started. An experienced family law attorney can help you to negotiate a custody order that is in your best interest, and more importantly, in the best interests of your children.
Of course, there are cases where it is necessary to go to trial and fight for custody. However, remember this: Your custody order is not a grade for how either of you is as a parent. Rather, it is simply a set of guidelines, usually one that can be modified, for how your children will be parented after you, the parents, separate. Most jurists are more concerned about what is practical for the children than what is “fair” for the parents.
The most hotly contested are cases where there is abuse or neglect, where one parent simply has no relationship with the children, or when one parent simply does not want the other to have a relationship with the children at all. Where there is abuse or neglect, it is necessary to fight to protect the children from the abusive and/or neglectful parent. Where one parent has no relationship with the children, usually due to long-term absence, then it is necessary to rebuild the relationship before the children spend more time with the parent than they are emotionally ready for. Where one parent does not want the other to have a relationship with the children, and there are no legitimate safety concerns preventing the children from having a meaningful relationship with both parents, then the parent who is being kept away should fight to remain in the children’s lives.
More commonly, where there is a dispute about who should be the primary residential custodian, the parents disagree about who the primary caretaker was (or whether there was one at all). Each parent may feel that he or she was the primary caretaker and therefore should have more time with the children. One parent may feel that the other kept him or her from spending time with the children, and wants at least equal parenting time, to be able to have the relationship that he or she feels deprived of.
The court system is designed to find rational solutions to emotional situations. Therefore, if you go to court, you may be surprised to find how little patience the courts have for the emotions that go into disputes about parenting time. As alluded to earlier in this chapter, the court will be focused upon what is practical, and less on what the parents believe is fair. This does not mean that you should give up or be a doormat. Rather, what it means is that the way to resolve issues regarding a parenting time schedule is to focus more on what makes sense for your children, and less on what you feel that you (or the other parent, for that matter), deserves. It is a common scene during custody litigation to see a parent seek substantial overnight parenting time, only for the other parent to ask, “Where was he (or she) when our child was sick? He (or she) never wanted to be involved in parenting before.” To the party’s frustration, unless there is serious reason to believe that substantial overnight parenting time would be against the child’s best interest, the court’s response is usually, “That was then. This is now. Now, he (or she) wants to be more involved. Wouldn’t that be good for your child?”
In most cases, where both parents are fit parents, establishing a parenting time schedule is a relatively simple process, when emotions are taken out of the equation and the parents focus upon practicalities. This is far easier said than done, because realistically, these issues come up when people are emotional. An experienced family law attorney can guide you through the process, and establish a parenting time schedule that promotes your well-being, the well-being of your children, and minimizes the risk of future custody litigation.
Unlike the issue of parenting time, where there are countless options for establishing a schedule, there are fewer options available for deciding decision-making authority, or legal custody. The different options regarding legal custody are:
- Sole custody: Where one parent makes decisions regarding the children, and the children live with that parent.
- Joint custody: Usually refers to circumstances where the parents share decision-making authority, but the children live mostly with one parent.
- Shared custody: (Sometimes referred to as “joint legal and residential custody”) Where the parents share decision-making authority, and the children spend equal time with both parents.
Legal custody pertains to major decisions. Examples include:
- Major medical decisions, like whether the children will have surgery (which everyone hopes never comes to pass),
- Major educational decisions, like where the children attend school, and whether the children will be evaluated for/receive special education services,
- Religious decisions (often discussed separately in custody orders), and
- Decisions regarding extracurricular activities. (Custody orders often state that neither parent can enroll children in activities during the other’s parenting time unless the parents agree.)
Attorneys often tell clients in custody cases that to have joint custody, the parents need to get along enough to make decisions together. This is true. However, even if the parents have communication issues, it is still possible to establish a joint custody order with appropriate guardrails. Examples include:
- Giving one parent final decision-making authority in case of disagreement
- Example: Let’s say that the parents disagree on where a child will attend middle school. The parents are expected to discuss the issue and try to come to an agreement. However, if they cannot agree, then one parent gets to make the final decision.
- Agreeing to defer to third party professionals in case of disagreement
- Example: Let’s say that the parents disagree about whether a child should have surgery. They are expected to discuss the issue and try to come to an agreement. However, if they cannot, they agree to follow the advice of the child’s pediatrician.
- Use of a parenting coordinator
- A parenting coordinator is a qualified person, usually a mental health professional or an attorney, appointed by the court to help the parents to resolve issues. In many court orders where a parenting coordinator is appointed, the parenting coordinator is given decision-making authority where the parents cannot come to an agreement regarding major decisions.
Disputes involving legal custody and parenting time can be excruciating. Even though they are intensely emotional for the parents, the decisions ultimately must be based upon logic and practicality. While often challenging, the best outcomes arise when the parents can put their anger aside and make decisions with the children’s best interests at the forefront. An experienced family law attorney can negotiate custody orders that protect their clients and, more importantly, the children.
