Hi, I’m Marcy Hahn. This is Divorce: What to Expect. In today’s episode, we’re going to cover child custody, parenting time, and child support. So one of the most common questions that I get from a new client is what is child custody? And how does it work? And how often am I going to get to see my kids? Now, this is something that’s going to vary state to state. So obviously, you want to talk to your individual counsel about these rules. But as a general matter, there are two categories of custody. There’s legal custody and physical custody. And when people talk about legal custody, it generally refers to a parent having the ability to make major life decisions for the child, such as whether or not to have surgery, where to go to the doctor, what should their diet be? What school should they attend, should they attend private school or public school? What should be their religious affiliation, if any? And these are the major types of decisions that get made when you have legal custody over your child. And there are two different ways that this can work: it can either be sole legal custody or joint legal custody.
Co-Parenting and Child Support
If it’s sole, that means that one parent makes all of these major decisions for the child without having to consult with or interact with the other parent.
And these days, that particular type of legal custody is pretty rare. I would say, for the most part, people tend to find themselves more in a joint legal custody situation. And in joint legal custody, the parents make all of these major life decisions together. And even though joint legal custody is the most common, and it’s great, if you can agree on what these major things should look like for your kids, it also can create a lot of conflict because it can be the source of a lot of fighting. If you’ve been unable throughout your marriage to agree on some major things about life, then sometimes those same conflicts can translate into your philosophy about how to raise children. And, you know, just to give you an example, I had a case where the mom after the divorce, got remarried and moved like 100 miles away, and just wanted to unilaterally change the school for the kid to a completely different school district, take him out of his social network, take him out of his friend network, etc. And he was going to be taken out of the school where he had gone for like seven years. Well, she had joint legal custody, and she didn’t get to make that decision unilaterally. The father challenged it in court, and they were able to work out an arrangement for the child that made sense for their circumstances. But you don’t get to make those unilateral decisions anymore for your kids; you’ve got to work with your former spouse if you have joint legal custody.
The other type of custody is physical custody. And that is just basically about how your kids are spending their time. Many states call it parenting time. Some states still call it visitation in some places. It’s also called the list of parental responsibilities. And it breaks down like who’s responsible for what and when. But whatever the phrase is, parenting time is about how and when your kids are going back and forth. And it also includes how they’re going to spend major holidays. Now, this is one of the most difficult decisions that you have to make if you have minor children when you’re going through the divorce process because this is really going to have a big impact on your kids; it’s going to impact how they spend their days, it’s going to impact their school life, it’s going to impact their ability to hang out with their friends. And it could impact the types and kind of extracurricular activities that they participate in. So there are many different schedules. And you’ll have to figure out the schedule that is going to work best for your family. And it often depends on the age of your kids.
So if your kids are really small, say they’re under eight years old, the guidelines often provide that the kids should not be spending long stretches of time away from either parent, because the kids are young, you want to ensure that they are forming a strong bond with both parents. And so you want to have a very balanced schedule or a schedule where they’re able to see both parents often. Now, this may mean that when the kids are younger, you have a schedule that has a lot more transitions in it. For example, maybe they’re going to do two days at one parent two days at the other, and then they’re going to switch back to that first parent again. Transitions can be tricky for kids too, getting adjusted back and forth. But one way to ease transition for kids is to have the transition happen at daycare, have it happen at preschool, have it happen after grade school so that the kids are not having to be moved from one home to the other because that can be particularly emotionally difficult for them. And as your kids get older, it’s less important that they see both of you as often because once the kids are older, I guess it’s assumed that they’ve already got established relationships with both parents; I’m sure there are some circumstances where that may not be the case, but for the most part, they’ve formed whatever attachment to you that they’re already going to have. And it may be easier for the kids to have a schedule that has fewer transitions because they’re not going to want to be packing up their homework and their schoolbooks and all of their extracurricular activity, equipment, and things. It can be easier for them with their school schedule and homework and special activities to have more of a schedule where there are longer blocks of time with each parent.
So I’ve seen a lot of people move to a week on week off schedule at this point where the exchange may happen Monday after school, so the kids have the full weekend with both parents, and then they know that they’re going to be staying in the same place throughout the whole week. And again, it avoids a direct transition from one parent’s house to the other. And it can also help them with respect to making sure that they have everything they need for the week, all in one place. With respect to transitions in very high conflict cases, I have seen it happen where the parents have had to do drop-offs and pickups at police stations, at Home Depot parking lots, or at locations where there’s a lot of witnesses around. And that can just be really sad for the kids. I understand that in some cases, it’s necessary. But if you’re in a situation where you need a police escort to transport your kids from one place to the other, you really need to think about how you might be able to approach the situation differently and lessen the conflict. Because this is going to have a big imprint on your kids as they’re growing older to think that they couldn’t just go back and forth between one house and the other. But they had to have a police escort to get from point A to point B.
Tune in to the episode to hear lots more about child custody, parenting time, and child support.
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