In today’s episode, I wanted to talk about something that comes up when couples are discussing custody, and that is how somebody’s role as the primary caregiver to the children in the past should or would impact their parental rights, their custodial rights in the context of the divorce process.
Let me just define what I mean when I use those two terms. First, what’s a primary caregiver, which I think too many of you may seem self-explanatory, but it’s basically the parent who primarily, more so than the other parent, was responsible for the day-to-day care of the children. Depending on their ages, that could be bathing and dressing them, certainly taking them to medical appointments and otherwise, planning their activities, interfacing with their schools. The list goes on indefinitely, as many parents know. The primary caretaker is the person who took the lead in that role in caring for the children on a day-to-day basis.
When I refer to parental rights in the context of custody, I’m talking about the two main components of custody, which are physical or residential custody, so your parenting schedule with your kids, your access time to your kids. With whom, if anyone, do the children reside more? That would be considered the primary residential parent. The other component of parental rights or custody is the ability to make major decisions for your kids. We refer to that as a legal custody. Together with parenting time or parenting schedule, those are the two main parental rights that I’m referring to when I use that term.
There’s a common perception among many parents going through the divorce process that the parent who was the primary caregiver when the parties lived in one household or even if they were separated, the parent who was the primary caregiver historically will be the primary caregiver going forward. And within the context of parental rights, will be the primary residential parent for the children, the parent in whose house the children reside most of the time, or will be the parent who has the final say around major decisions for the children. What I want to talk about in this episode is to what extent that’s true, to what extent you should expect that or something quite different in the divorce process, and how you can productively have a conversation with your co-parent about either your or their role as the primary caretaker of your kids.
I want to back up and say that where two parents are aligned to have the parent who has been the primary caretaker continue to play that role, to have the kids primarily reside with that person, to have that person take the lead on making major decisions for the kids, including school selection, medical decisions, certainly extracurricular activity and summer camp selection, that’s completely fine. Almost any, within reason, parenting agreement that two parents come up with by mutual agreement that they are both on board with, including where that involves somebody continuing in their role as the primary caretaker of the kids, will be fine by the court. What I want to focus on is what happens when one parent has been the primary caretaker of the kids and wants to continue playing that role and the other parent is not so sure about that or is sure that they are not in agreement with that.
The vast majority of couples will come to some agreement about parenting outside of the court. It’s helpful to know if you could not come to an agreement about parenting outside of court, how does a court look at the role of the primary caretaker of the kids, and how does that translate, if at all, to parental rights like physical and legal custody? I want to flag for you here that the law in every state is different. I practice in New York, so I’m speaking about New York law in this episode, but many of the tenets and the practices of the different judges in assessing best interests of the child are going to be similar across states. If you are not in New York, and even if you are in New York, you should absolutely speak with your own advocate on this subject. I hope in this episode to be able to give you some general outline of how to think about the role of the historical primary caretaker and how that would be considered in court if you and your co-parent are disagreeing about custody.
The overarching thing to bear in mind is that a judge, when they are deciding custody in a disputed custody case, they are holding out as most important to them the best interests of your children. How are those defined? Well, that is more complicated and it differs, frankly, from judge to judge. Because it’s so fact-specific, it can be very hard to predict. However, there are different factors that are commonly considered as part of a best interests analysis or inquiry, and the role of having been the primary caretaker is one of them. It is only one of multiple factors and it is not the primary factor or the most important factor. It’s an important factor, but not the only one.
In a situation where the children in a divorce are fortunate enough to have two fit parents, competent parents who want to be involved in their lives, the court is going to generally see it as in the children’s best interests to have two active, involved parents. That includes where one parent may not have been nearly as active or nearly as involved historically. I think, first of all, there is a challenge you face when you are in court to proving anything historically around parenting. Obviously, it’s not impossible. People do that in contested custody cases all the time. Frankly, I think it’s challenging for the court. Even when a lot of evidence is presented through testimony and documents in a contested custody trial, it can be hard to know with certainty to what degree somebody was the primary caretaker with a co-parent who was pretty active and involved, and to what degree somebody was the primary caretaker, essentially the sole caretaker of the kids with a complete absentee co-parent.
Even in that latter situation, many things are expected to change when you go through a divorce. The roles that you have historically played in the context of an intact relationship and in the context of living in one household, they are necessarily going to have to shift. Presuming that both parents are competent and fit, there’s an expectation that a parent who has been less active and been less involved, if they are willing and able, will change their roles somewhat and will become more active and more involved. Again, to the extent that they are a fit parent, that is really generally seen as in the best interests of your kids to have both parents be active and involved in their lives and to have quality relationships with both parents.
I think what can also be hard for a judge or for the court in figuring out how to take into consideration the fact that somebody was a primary caregiver of the kids, let’s assume that you were able to successfully prove that at trial that you were the primary caregiver, there’s not a clear, obvious correlation to, “Well, you did 89% of the parenting labor, and thus, you should have more than 50%, but x% greater, of the time with the kids,” or, “Thus, you should make y% of the decisions for the kids.” It’s not really clear science to that. So many of these considerations in a contested custody case are subjective. They’re gray. Frankly, with two fit parents, probably a host of outcomes could be really good for the kids. It might be impossible for a court to truly know which exact outcome is the best among all potential outcomes for the kids.
I think as a result of the difficulty of (a) measuring to what degree somebody was the primary caretaker of the kids, and then (b) drawing a direct correlation from establishing that someone was the primary caretaker to knowing exactly how much more time and how much more decision making that should mean that they have with or for the kids. It’s hard for the court, they may be inclined not to be as influenced by it or not to base their decision on that factor, to consider it but certainly not to have it override other factors.
I’ll add that one equally important, if not more important, factor is the sense that a court gets of the degree to which each parent is willing and able to support and to foster the kids’ relationships with the other parent. Even where somebody has clearly been the primary caretaker, if the court has a sense that that person is not fostering and not supporting the children’s relationship with their other parent, that’s a big source of concern and weighs as heavily against the primary caretaker parent as having been a primary caretaker may weigh in someone’s favor.
The final thing that I will say, which I think is often unspoken in the room between couples as they are talking through the issue of custody and disagreeing about what their future parenting roles should look like, and part of what is influencing at least one person’s perspective on that is the fact that they historically were the primary caregiver, is that the decisions about custody that if you couldn’t agree with your co-parent that a court would make for your kids are not based on fairness to the parents.
I think that understandably, there can be a real sense of injustice there, in particular, for the person who, if they were the primary caretaker and really did the lion’s share of parenting work and that’s a lot of labor, that it can feel like there is no recognition of that in the divorce process. If that doesn’t mean that they have a greater right to spend more time with the kids or they have a greater right to make decisions for the kids, in some ways, I think it leaves people wondering not, “What did I get out of that?” but just that that’s really unfair and feels devaluing of the role that they have played historically. It feels like it ignores the fact that, for instance, for the last 10 years, they have been the go-to person for the kids. They know every detail of the kids’ lives, teachers, babysitters, friends, activities, etc. How could it be right to come to the divorce process and ignore that and treat both parents as equal?
What I want to explain there is that a court is really coming from a perspective not of being fair to each parent, but of trying to think about for the kids who will now be living in two separate households, with each parent in one of those households, what is going to best support them, to best foster their development. Certainly, the active involvement of both of their parents is a huge part of that. As a result, it can feel like the court is giving equal opportunity to a parent who has not historically done equal parenting. That can be the perspective and the subjective feeling of the parent who has been the primary caretaker. Again, that’s with the goal. This is all very fact-specific, but presuming both parents are fit, want to be involved, are able to be involved, their work schedules permit them to be involved, the court is going to want to foster that as much as they can. Now, whether that means that there’s an exactly 50/50 parenting schedule, or somebody has four evenings and someone has three, or somebody has five evenings every week and the other parent has two, that is almost impossible to predict, which is part of the challenge of engaging in a contested custody case.
Big picture, what I want to clarify is that the fact that somebody was historically the primary caretaker parent does not necessarily mean that they have more parenting or custodial rights in the context of a divorce or that they will play the primary parenting role going forward. They may well play that role. They may either play that role by agreement of the parents. They may play that role going forward by order of the court if the court ends up determining that that is in their kids’ best interests. The distinction I want to draw is that it is not the case automatically that because somebody was the primary caretaker parent, then they will continue to play that role going forward because that correlation between consistency and no change in parenting roles through a divorce and the best interests of the children, that correlation has not necessarily been drawn.
You want to bear that in mind whether you feel like you and your co-parent have had equal parenting roles or you feel like you’ve been the primary caretaker or your co-parent feels that way. You want to bear that in mind that it is not automatically the case in any sense that having been the primary caretaker results in greater custodial rights. You really want to take the opportunity, whether you are negotiating parenting agreement in mediation or through attorneys outside of court system, that putting that question to the court, often the result is going to be very unpredictable. If at all possible, it is always going to be in the best interest of your kids that you and your co-parent ultimately decide about their parenting schedule and the structure for making major decisions for them rather than putting that very critical decision to a third party.
That was our mini-episode on the role of the primary caregiver and how it impacts parental rights. I hope it was helpful for you.