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Hi, everyone, and thank you so much for tuning in to the Divorce Field Guide. My name is Ani Mason, and I’m a divorce lawyer and mediator, and also the creator of this podcast.
Today, we are in Episode 13, and we are going to be talking about kids and custody in a divorce. At the outset, I wanted to give a very, very basic overview of what custody is and say a few words, before diving in, in a bit more detail, into the different subtopics that can come up under custody in a divorce.
When you have to address custody, there are two key topics that are addressed, and then a series of smaller miscellaneous topics. The two key topics are: a parenting schedule for both parents (a schedule of when each parent is going to be with the kids), and, then, a plan for making major decisions for your kids (not the day to day stuff, but the bigger decisions, like where they might go to school or whether they have a particular medical procedure).
Divorce law and the law concerning custody is different in every state. For that reason, I can’t tell you what the custody law is in your state, what it says, and how it would specifically apply to your situation. What I want to try to do instead is to talk about the key topics that you have to address in, whether it’s a custody agreement or an overall separation agreement that has a custody section, what are the key topics, so that you can begin thinking about those and preparing, sort of, strategizing for your divorce negotiation.
Let me start off with parenting schedule. Parenting schedule, as I said, is basically what the schedule that each parent has of time that they are going to spend with the kids. I think of it in three separate categories.
The first category is your regular, everyday, or week to week schedule. When there’s nothing special happening, this is the regular schedule that you follow with the kids. This is what your schedule is most of the time.
Then, the second category is holidays or special days for your family. So, it might be a Federal holiday, but it might also be, for instance, a child or a parent’s birthday, or Mother’s or Father’s Day. Something that you want to take a break from the normal schedule to recognize this particular day.
Then, the third category or third area that I think of is vacation schedule – so, not a particular holiday, but another time during the year where you might break from the regular parenting schedule with the kids.
I think what a parenting schedule is, is relatively self-explanatory. It is the schedule that sets out when each parent is with the child or the children, and there are many, many different varieties of parenting schedules.
On one end of the spectrum, there are schedules where the child or children are in one “primary” residence or, main home base for the weekdays and, then, for the weekends, they are alternating time with each parent. Then, on the other end of the spectrum, there are 50/50 equal time schedules. There are many different types of 50/50 schedules, from one week on and one week off, to alternating every weekday and just alternating weekends.
Whatever kind of divorce professional you decide to work with will be able to hash out in more detail for you exactly what are the different options that we can consider. Ideally, you and your spouse will be brainstorming whatever schedule works best for the two of you. Because, in reality, certainly, what works best for your kids is a central consideration when you are coming up with your parenting schedule, but a good parenting schedule is also one that works well for both parents. It can’t be too onerous on either of you, or difficult, or just not work for one of you, for it to work overall and be good for your kids. So you want to keep that in mind.
Then, you can touch on, and typically will touch on, in a divorce agreement: What are you going to do for the days, the holidays or other days, that are special for you and your co-parent throughout the calendar year? For a particular holiday – take Christmas, for instance – that can involve alternating a holiday year to year, like one parent gets even years and the other gets odd years, or it can involve sharing a holiday every year, so maybe one person gets all the way through till late Christmas eve or Christmas morning early, and then the other person has from Christmas morning early until…for some period into the winter break.
Again, there is an endless amount of variety, but the point is, really, just to identify, in preparation for your divorce negotiation, you want to identify what are the special days to you in the year when you want to think outside the regular schedule about how you and your ex will be spending time with your kids?
Then, there’s the component of a custody agreement that involves a vacation schedule. This doesn’t mean that you are putting on a calendar exactly what week you will be taking vacations with your kids for the next ten years. That would be kind of crazy. But you will often speak to the fact that each parent will have a right to take up to a certain amount of vacation with the kids.
Think of that amount of time in two ways. One is a total, cumulative amount of vacation time in the year. So, – I’m making this up – up to four weeks of vacation with the kids, or up to two weeks of vacation with the kids. But, then, also think about how much of that time can be consecutive. If you say, well, each parent may take up to four weeks of vacation with the kids and up to two consecutive weeks, that would mean that a parent would not be gone with the kids for an entire month. That may not work for the other parent, or it might, but you want to just think about that when you’re talking about vacation schedule.
So, that is the parenting schedule component of custody.
You may have a relationship with your spouse in which it is not important and would seem silly to drill down in to detail about when are the kids picked up from whose home, and who is responsible for taking them to school and picking them up at what time, and exactly when is pick up and drop off. Or, you may have a higher conflict relationship and you really feel like you want to really, sort of, nail that down in your agreement. That’s up to you – that level of detail about exactly when do the kids switch from one parent’s home to the other and exactly who is responsible for doing the pick up or drop off from or at a given place. So, that’s parenting schedule, which is one of the two very big components of custody.
Then, the other very big component of custody is a plan for making major decisions together for your kids. So, major decisions. I want to underline the “major” part of that. These would not be decisions about what your kid is eating for dinner or how much TV they’re watching in a given afternoon. These would be decisions, as I mentioned before, about what school will they attend. Let’s say they’re finishing elementary school and they have to select which middle school they’re going to go to. What school are they going to go to? Or, if you’ve had a recommendation – maybe they have a partial tear (hopefully not) of a ligament in their knee and you have a recommendation to do surgery, but also have to consider whether or not to just rehab. That’s a major medical decision.
So, the court wants to see, when you’re going through a divorce process, they want to see that you have a plan in place for how you’re going to make those decisions together.
At one end of the spectrum, your plan can be very, very general, which would be something along the lines of, “We’ll make major decisions for our kids by mutual agreement.” What that means is that whenever a major decision comes up down the road in two years, five years, ten years, whatever, you have to discuss it together and come to an agreement between the two of you. That may be called different things in your area – “joint legal custody”, something else – but the idea is that it’s shared decision-making. You’re both discussing the decisions, you’re both consulting with each on the decisions, and you have to agree in order to make a particular decision.
Then, the other option is that you don’t have to agree to make a particular decision. How would that work? Well, it works in the following way: You would give the final say on a particular area of subject matter to one parent or the other. And you could give the final say, just in general, to one parent, or you could say “Well, Dad is going to have the final say on educational decisions. Mom is going to have the final say on health-related decisions.”
So, you’re still discussing the decision, and consulting with each other, and trying to come to an agreement, but if you find that you can’t come to an agreement, somebody has the final say. Someone can make the final decision, whether or not the other parent agrees with it.
If you do have an agreement in which you say that you have shared legal custody or joint custody – however it’s appropriately worded in your area – and you make decisions for your kids together by mutual agreement, it’s not uncommon that your agreement would also speak to, well, what happens if we can’t agree, because that’s a possibility.
There are a couple of options there and one option, of course, is to, well, to say nothing about it at all, and if you can’t agree, you would deal with that at some time in the future.
Then, there are two other common alternatives or options that people will include in their agreement to speak to. Number one, you can make a commitment to, before you go to court with any disagreement, to consult with some kind of neutral facilitator. So, if you’ve been in mediation, it may be a commitment to go to mediation for one or two sessions before you go to court, or collaborative law, if you’ve been in that process, likewise, it may be a commitment to have one collaborative law session on the subject of your dispute before you go to court.
Alternatively, some people will include a provision to, if there’s a disagreement on a major decision concerning their kid, they will consult first, before going to court, with a neutral professional with subject matter expertise. So, this is not so much a mediator or a collaborative lawyer – those tend to be legal professionals – but it might be, for instance, a pediatrician. Or it might be your child’s therapist. Or just maybe it’s your child’s teacher or a tutor. Somebody who’s an expert on the subject matter who has knowledge of your child’s particular situation.
With that said, you always have the right, if you can’t agree, to go to court. Again, this is if you have committed to making all decisions by mutual agreement. If you have not committed to that and you have committed to consulting with each other on all major decisions but allowing one parent to have the final say, you would not have the need to go to court in a disagreement. One parent would have the final say and could make a decision. However, not to add too much complexity, if the decision was something that the other parent really felt was endangering the child’s wellbeing, you’re never prevented from going to court to challenge the decision.
So, parenting schedule, decision making plan – those are the two key components of a custody agreement within the larger context of a divorce agreement.
ADDITIONAL CUSTODY TOPICS
Then, there are a series of smaller subject matter areas or miscellaneous terms that are often included in a custody section of an agreement, or that you would often speak to as part of your custody discussion.
Let me start with some things that you may not even speak to as part of your negotiation around custody, but are typically commitments that parents make in their ultimate divorce agreement. Those include supporting the child’s relationship with the other parent, being respectful in your communications with each other and certainly in your communications with each other in front of the child, having the right to, no matter what your schedule is, to attend any significant event (recital, parent-teacher conference, whatever, soccer game, related to your child) irrespective of whose particular day it is in your parenting schedule, having free and full access to all information about your child. So, report cards or any kind of other report from the child’s school or from a therapist, both parents will always have access to that information. Then, finally, it’s common just to confirm that the child will be keeping their last name, whatever it currently is, that that won’t be changing, and that the child will continue to call their two parents “Mom” and “Dad,” or whatever version of that that you have, and that they won’t be instructed to or encouraged to call another important figure in their life (like a stepparent), “Mom” or “Dad.
By the way, these terms really can be tailored to what makes sense for you and your spouse. So, some of them may not resonate with you and if that’s the case, no problem, you don’t have to include them.
Some other common things to negotiate and to speak to in an ultimate custody agreement are plans for traveling with the kids.
On the one hand, you might make certain commitments about travel with the kids. You might commit to advise the other parent at least a certain amount of time in advance of traveling with the kids and, maybe, that’s only for international travel or travel out of state. You will likely commit to sharing with each other all information about a trip that you’re taking, contact information, flights, where you’ll be staying, how to get in touch with you so that whenever a parent is traveling with the kids, the other parent has the comfort of knowing where the kids are and it’s not a last minute, sort of, surprise decision that they’re scrambling to get up to speed on. It’s something that they know about in advance. So, again, you and your spouse can tailor that as it makes sense for the two of you, but it’s common to speak to it.
Some people will also speak to, not just an affirmative commitment, but they’ll commit to a restriction around travel. For instance, there may be particular countries that you and your spouse agree you really don’t want the other parent traveling to with the kids – maybe that’s at all or maybe that’s unless you mutually agree in advance. Sometimes, people will be comfortable saying no international travel unless the parents mutually agree. Again, totally up to you and that would be tailored to your specific situation, but just a topic to be mindful of that’s common to address in your custody discussion.
Right of First Refusal
Another common topic that comes up is something that is sometimes referred to as a “right of first refusal.” What do I mean by that? Well, when you have your parenting schedule operating in the background and, let’s say, it’s Mom’s weekend with the kids, but it turns out that she has a work conference out of state that she has to travel for. If she’s supposed to have the kids, she’s supposed to come up with some kind of childcare plan because she’s not going to be in town and able to be with them. Oftentimes, the other parent, if Mom can’t spend time with the kids, then he’d like to be able to spend the time with the kids. That’s the idea of the right of first refusal, that the non-traveling parent or the parent who otherwise was not supposed to have the kids with them is the first person who is asked if they would like to spend time with the kids if the other parent is away. So, before going to a sitter, or a nanny, or another family member, if you are going to be away from the kids during your time with them, you give the opportunity to your spouse to have that time with the kids. It’s not an obligation. It’s completely voluntary. So, if it doesn’t work for your spouse, it’s still your responsibility to come up with childcare. But that’s something that’s important to a lot of people.
You want to give some thought to what period of time away from the kids would trigger this right of first refusal. You don’t want it to be thirty minutes – like going to the store, and their aunt is watching them, and you have to give the other spouse the right to be with them for thirty minutes – that would be crazy-making. So, you want to think about: Is it an overnight? Is it two days away? Is it a block of hours during the day? What makes sense for you, if you want to speak to it at all?
Then, there are a series of topics that concern what I think of as changes in the future, some welcome, some unwelcome, and how you agree that you’ll handle those as it impacts your kids.
Significant others are a big topic. You may or may not have significant others right now. You will likely have significant others in the future. Sometimes, parents want to agree about, okay, one of us has a significant other, at what point are we both okay with that person being introduced to the kids?
So, that might involve a minimum number of months in a relationship. It might involve just a bar that says you don’t introduce people outside of serious, or committed, or significant relationships to the kids. It might include a commitment to let your ex know before you let the kids know so that the ex is not hearing through the kids that the kids met your new significant other.
A couple of other topics related to significant others are: After the introduction, at what point is it okay for them to be doing overnights when the kids are still in the home? This may not be something that you feel like speaking to in your agreement, and you don’t have to if you don’t want to, but it’s something some people will speak to. Also, to what degree is it okay for a spouse’s significant other to be providing childcare where necessary? So, those are some things to keep in mind and do some of your own thinking on where do you come down on those issues and what’s important to you. Is this critically important to you to speak to in the agreement or is it something that, well, you have a preference, but you know what, no big deal, you don’t feel strongly about it?
Another potential future change is moving. What if one of the parents gets an amazing job offer on the other side of the country or internationally? What happens then? You’ve created a parenting plan, a schedule that works when you’re in the same city, but what are you going to do if, all of a sudden, you’re not in the same city, or you’re in the same city but you’re in completely different, inconveniently located places in the same city? Or one of you moves outside the city to the suburbs? There are a million permutations of that, but the gist is you’re both living in certain places right now, you may foresee a future move or you may not, but if there is a future move, what happens?
Are you going to not say anything about that in your agreement, which is perfectly fine, and you will deal with it at the time? Do you prefer to say that you will return to a negotiation process if that happens? It’s not specifically committing you to anything, but it’s at least saying, “Well, we’ll try to negotiate with each other and come up with some kind of agreement.” If that does happen in the future, some people will choose to make an affirmative commitment in their agreement that they will stay within a particular town or city, within a particular distance from, say, the kids’ school or the other parent. Again, you don’t have to speak to this, but if it’s something that feels relevant in your particular situation, it might be something to give some consideration to.
Death of a Parent
Then, hopefully, this is never relevant for you, but we will, sometimes, in a custody negotiation and then in the ultimate divorce agreement speak to what will happen in the event that one parent were to pass away while the kids are still minors and, specifically, in terms of the kids’ contact with that parent’s immediate family and their relatives. Sometimes, people will make an affirmative commitment in their agreement to say, you know, God forbid, if one of us were to pass away, the surviving parent will ensure that our kids have regular contact with, maintain a relationship with, maybe spend a particular holiday with, the family of the diseased parent.
So, again, God forbid, to give you a true parade of horribles, if both parents were to die while the kids were still minors, do you want to name a guardian in your separation or divorce agreement? That person or those people who you name should be in your wills as well – that’s very important – but some parents want to make the commitment that they will name those people, or they have named those people, and they will maintain them, whoever you’ve chosen as guardians for your kids.
If you haven’t chosen guardians for your kids – maybe something that you give some thought to, because of the nature of contracts and agreements like this, we anticipate worst case scenarios and, to a reasonable degree, try to speak to: Okay, if that awful thing happened, what would we do in that situation?
TIPS ON NEGOTIATIONG CUSTODY
Let me just zoom out and give a couple of tips or comments on the bigger picture with regard to custody. When you are talking and negotiating around these different issues with your spouse, keep in mind a couple of things.
No matter what parenting schedule you agree to, you and your spouse are the most important people in the lives of your minor kids. Even when they have reached the age of majority, you’re probably still the two most important people in the lives of your children! That is true whether you have a 50/50 schedule or a 63/37 percent time schedule. Whatever you have, there is no schedule, or almost no parenting schedule, you could agree to that would diminish your importance in the eyes of your kids.
The most impactful thing with regard to divorce and its impact on kids and parenting is not so much the exact calculus or formula of your parenting schedule, but it’s more in how both parents relate to the children and relate to each other in front of the children. So, keep that in your sights as you are negotiating with your spouse around a parenting schedule.
Sometimes, people can feel really stuck because, you know, exactly equal time is very important to one person, and absolutely not equal time is very important to the other person. Don’t lose sight of the fact that whatever schedule you agree to, the importance that you have in your kids’ lives is incalculable, and, actually, the biggest impact that you have on them is, whatever the schedule, how you’re both relating to them and relating to each other in front of them.
Then, another component I want to speak to, is the fact that when you are moving from co-parenting in one household to co-parenting to two households, it involves some substantial changes. I know that that is obvious, but I want to point out that one of the ways in which it may not be obvious is that in the time that your kids are with your spouse, they will be parented as your spouse sees fit. And you would be in good company if you had some differences of opinion with your spouse on best parenting practices. And, I would encourage you not to burn too much energy negotiating with your spouse about parenting minutiae, and exactly how they parent and, obviously, vice-versa. They should not be spending too much energy telling you exactly how to parent.
The reality is most parents are not receptive to being told by the other parent how they should parent their kids. So, you want to honor that boundary, not just because it’s often not productive to try to tell your spouse how to parent, but also because, unless we are talking about a parent who is truly unfit and parenting in a way or interacting with the kids in a way that is legitimately putting the kids in danger or seriously harmful to the kids, there’s no way that you can force your spouse to parent in one way or another. The court, outside of really extreme situations, where the threat of harm to a kid is substantial, the court is not going to intervene in your day-to-day parenting decisions.
So, why do I raise this? Well, in the context of anticipating that you will be in a divorce negotiating with your spouse, and that if you have kids, if you have minor kids, you will be negotiating custody with your spouse, you really want to save your energy and goodwill for the elements of custody that really, really matter to you. And not to burn energy or to burn goodwill on either things that, in the scheme of things, they’re not so important, or even if they are important to you, there is no way you can force your spouse to agree to them because the court would never touch them.
My advice to you is to keep your eye on the bigger picture, when you’re discussing custody, and to really pick your battles. I think anything concerning people’s kids is so near and dear to their heart that it is normal to really feel that every element of what you foresee as the ideal co-parenting or custody arrangement needs to be put in place, and, similarly, your spouse may feel the exact same. Try to think about and prioritize for yourself what are really the non-negotiable issues for you and what are the issues where, yes, you have a preference, but you could be flexible. Because, after all, you’ll have to be flexible in some points of this. It is a negotiation.
That is it for Episode 13. I hope this overview of custody is helpful for you. Next up in Episode 14, we will be taking a closer look at support payments and specifically at child support and spousal support. Until then, thank you so much for joining me, and I will look forward to speaking with you soon.