Once you become a parent, virtually every major decision you make in your life revolves around your children’s well-being.  How to navigate them through a divorce or break-up from their other parent is no exception.  Decisions regarding custody must be handled with the utmost care, with the primary focus on what is best for your children, regardless of any negative emotions you may be experiencing during this difficult time.

Before you begin drafting your custody paperwork, there is some terminology included on the legal forms that you will need to understand.  There are two separate components to child custody which must be addressed in your legal documents legal and physical:

  • Legal Custodythe parent with legal custody has the authority to make decisions involving the children’s health, education, and welfare.  In most cases, the court will grant joint legal custody to both parents, with the expectation that the parents will be able to work together to make these important decisions in the children’s best interests.  Generally, the only time one parent is granted sole legal custody is if the other parent has:
    • demonstrated unfitness to parent;
    • disappeared; or
    • consistently refused to cooperate in the decision-making process
  • Physical Custodythis is usually where the biggest conflict arises. Physical custody pertains to where the child actually resides. The types of physical custody are:
    • Sole physical custody the children reside with one parent only, subject to possible visitation time with the other parent
    • Joint physical custody the children reside with each parent on a set schedule.  Be aware, however, that joint physical custody does not necessarily mean the children are with each parent 50% of the time.

Obviously, the best physical custody arrangement is one that the parents make themselves.  But if the parents cannot agree, they will each be required to file a motion with the court for a judicial determination of custody.  A required component of this motion is a declaration stating that parent’s concerns with the other parent.  One major problem is that these declarations may involve mutual accusations which are not relevant to the custody proceeding and only serve to prolong animosity between the parents.  Also, you need to remember that any declaration you file with the court becomes public record.  Therefore, it’s very important that any declaration you draft include only facts relevant to the other parent’s ability to care for the children.  Engaging in “mud-slinging” could back-fire against you; instead, make sure that your declaration reflects your concern for the best interests of your children.  This is where assistance from an attorney can be helpful.

Before the custody hearing, both parents, as well as any children over age 5, will be required to attend custody mediation with a trained evaluator who works with the parents to reach agreements regarding physical custody and time-share with each parent.  If the parents still cannot reach an agreement, the mediator makes a recommendation to the court, and the court will normally adopt the mediator’s recommendation, taking the control out of the parents’ hands.  The fundamental flaw in all of this is that neither the mediator nor the judge knows you or your kids, and by making them make the decisions, you are risking a result that will not be beneficial for the parents or the children.

Parents who are able to work together can, and are encouraged to, create any custody schedule they want and amend it as the children’s needs change over time.  What may be a beneficial custody arrangement for a 3-year-old may not be a good arrangement for a 13-year-old, so flexibility is important.  Your children will also benefit enormously from the environment of cooperation between Mom and Dad during this period of upheaval.

The attorneys at Family Law Center have helped hundreds of parents create and implement custody arrangements without resorting to litigation. We also offer an affordable online course regarding Collaborative Co-Parenting at www.collaborativecoparenting.com.  Even if you need to resort to litigation, we can prepare you for mediation.  Whatever your need, we can help you, give us a call.