LEGAL :: FEBRUARY/MARCH 2007

Legal Custody, Physical Custody, Visitation Plans and Co-Parenting - Which Option Is Best For Your Children?

By: Nora M. Daniels, Esq.

The holidays can be stressful. This is particularly true when individuals are going through a separation or a divorce and need to address the questions of where their children will live, who will be making the major decisions in the children’s lives, with whom the children will live, and what time the children will spend with each of their parents.

If parents cannot agree or work together through their respective attorneys to resolve custody questions, then their only remaining option may be to go to the court and have a judge resolve these issues. In the event of a custody dispute between a child’s parents, the court will make its custody determination based on what it decides is “in the best interests of the child.”

Presenting an effective custody argument to the court can be difficult and costly, and the court has broad discretion in making custody orders. Generally, the courts will take the following factors into consideration when making an award of child custody:

The history of domestic violence, if any, and the safety of the child and the safety of either parent from physical abuse;
The history of each parent’s willingness or unwillingness to allow visitation;
The extent and quality of the time spent by each parent with the children prior to or subsequent to the parents’ separation;
The parents’ ability to agree, communicate and cooperate in matters relating to the children;
The fitness of the parents;
The mental and physical health of all of the parties;
Any special needs of the parents or the children;
The overall and general needs of the children; including but not limited, to each child’s physical, developmental, psychological and nutritional needs;
The age and number of children;
The interaction and relationship of each child with his/her parents and siblings;
The quality of the children’s education and if it is possible to maintain continuity in the children’s education and home environment; and each child’s adjustment to his home, school, and community;
The availability of the parents and the children, taking into consideration such factors as each parent’s employment schedule, each child’s academic and extracurricular schedule;
The stability of the home environment(s) offered by each of the parents;
The (geographical) proximity of each of the parents’ respective homes; including whether or not either parent has established a residence, or is planning to establish a residence, outside of the state; and
Any other factors in the best interest of the child that may reasonably be brought to the attention of the Court.

Unfortunately, there are some cases when it is simply not safe for a child(ren) to be left alone with one of his/her parents. For example, supervised visits may be appropriate when the one parent has a demonstrated alcohol or drug abuse problem, or any other problem that clearly indicates that he/she could put the child(ren) in danger if that parent is left alone with the child(ren). Under such circumstances “Supervised Visitation” may be appropriate. Essentially, “Supervised Visitation” means that a third party stays with the visiting parent during his/her time with the child(ren), and the third party is there to make certain that the child(ren) is safe and that the visiting parent acts appropriately. Often the supervising third party will have the authority to stop the visitation session if he/she reasonably believes that the child(ren) is not safe during a given visit. It is often preferable that the third party is someone that both parents can agree on and, whenever possible, someone that the child(ren) feels comfortable with. In other circumstances, the third party may need to be a professional in the mental health field or have other necessary formal training or skills. If necessary, there are also supervised visitation centers and other agencies that provide supervised visitation with professionally trained visitation supervisors.

When there is not any need for supervision of one of the parents, but the parents cannot communicate well with each other, it is often in the best interests of the child(ren) to implement a detailed visitation schedule. Some of the more commonly applied and traditional parenting arrangements that fit this scenario provide that one parent will have primary physical custody of the child(ren) and both parents will have shared legal custody of the child(ren). Such an arrangement or court order may include one or more of the following provisions:

The child(ren) will spend time with the parent who does not have ‘primary’ physical custody on alternating weekends, including “three-day holidays”;
There will be a level of mid-week time spent by the child(ren) with the other parent;
The parents will share or alternate being with the child(ren) during periods of school recess (winter, spring and summer);
Holidays such as New Year’s Eve, Passover, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas are alternated or split between the parents;
The child(ren) spend Mother’s Day with Mother, Father’s Day with Father;
The parents alternate years on the child(ren)’s respective birthdays or alternate the days nearest to each child’s birthday;
There is either scheduled or open telephone contact with the child(ren) by the parent who does not have the child(ren) physically with him/her;
The Parties may exchange and/or reschedule their time with the child(ren) as mutually agreed without the need for a change or modification of the court order;
Additionally, any decisions regarding major elective medical or dental treatment for a child will be made by both parents in light of the circumstances, needs and desires of a child as well as the financial circumstances of the parents. (Hopefully with neither party being unreasonable in his/her position in the process); and
Generally both parents will have the right of direct access to school records, and as such each parent may review all medical, dental and educational records of the child(ren); and each parent may consult with individuals or institutions who provide the educational, medical, psychological or other services for the child(ren);

Another alternative would be to use a “Parenting Coordinator”. This is a relatively new and non-traditional approach to managing child custody disputes. In these cases an attorney or other professional is retained to arbitrate any ongoing child-related disputes between the parents. Often a Parenting Coordinator is able to provide timely, direct and individually applied solutions to a child related dispute, well before the parents have access to a Judge.

If parents can and will communicate easily and frequently with each other, they may not need a formalized visitation schedule but rather they may engage in effective “co-parenting” and develop a “parenting plan.” Essentially a parenting plan is a guideline which details how the parents will handle the ongoing daily living activities of their child(ren) and how the parents will care for their child(ren). The goal of the plan is for both parents to commit to maintaining a close and loving relationship with their child(ren), to work together to the best of their abilities, to be attentive to their child(ren) and to address their child(ren)’s changing needs.

A parenting plan can include ideas about how both parents may work to maintain a close and loving relationship with their children. What follows is an excerpt from the “Positive Parenting Through Divorce” program.

Six keys to successful co-parenting:

How you feel about your ex is less important than how you act toward him/her. Putting aside your negative feelings is definitely in the best interest of your child.
Respect your need for privacy and the other parent’s too. The only information that needs to be shared between co-parents is that pertaining to their children.
Each parent’s time with the child is sacred. Don’t make or change plans for the time your child is scheduled to spend with your ex. Honor the pre-arranged schedule.
Each parent has the right to develop his/her own parenting styles. As long as no harm is being done, let your ex-spouse relate to your child as he sees fit.
Acknowledge what your ex-spouse has to offer your child. Remember the qualities that first attracted you. Those qualities still exist and are available to your child.
Expect to feel awkward and uncomfortable about this new way of relating. But keep affirming your commitment to the new relationship and eventually your ex will begin to play by the same rules.

If you are involved in a custody dispute, you should consult an attorney. The above information has been provided as a general list of possible custody arrangements and alternatives. Perhaps your most important consideration should be how can you best protect your child(ren) from the stress and emotional impact of your divorce or separation from their other parent.

Nora Daniels’ primary areas of practice are Family and Probate Law, General Litigation and Bankruptcy Law.