What you should know about child custody – Part One

Child custody can be much more complicated and expensive than either party recognizes. Before commencing litigation you should be clear as to what you can expect from the court system.

My clients often tell me that they desire 100% sole custody. In reality, most people mean they want the child to reside primarily in their home and desire the other parent to play a limited role in raising the child. Before proceeding to court, it is important to know exactly what you want. In deciding this, know that the issue of child custody is twofold – there is legal custody and there is physical custody.

Being awarded legal custody means you will have the ability to make legal decisions concerning the child. These decisions include medical and educational decisions, whether and when to obtain a passport for your child, and whether to allow your child to obtain a driver’s license at age 16, etc. Generally, the court will award joint legal custody unless the parties agree otherwise. Although I have been successful in arguing that my client should be awarded sole legal custody over the other parent’s objections, this is rare and, in most cases, you should be ready to agree to joint legal custody. Most of the time, you will only win this argument if the other parent is abusive or absent. If you have specific reasons as to why sole legal custody is important to you, then give some thought as to exactly what your issue, is and then make a request to solve that specific problem. For instance, recently, we have seen a number of children diagnosed as being on the autism spectrum. Often, one parent desires therapy and medication for the child, and the other parent would rather avoid medication and therapy. In such a situation, the best approach may be to request “joint legal custody” but to request that you have the sole decision making power as to any medical decisions. To be fair to the opposing side, you may want to stipulate that you will give the other side immediate notice in writing of any changes to your child’s treatment or medical providers. The court will appreciate the fact that you are recognizing the importance of keeping the other parent informed.

Being awarded physical custody actually refers to the child’s primary home. Some courts will routinely award joint or shared physical custody and will outline each parent’s custodial time with the child. The award of “joint” or “shared” physical custody, or “primary” physical custody is not too concerning. Your request to the court should focus on what custodial arrangement you would like and why you believe such a schedule is in the child’s best interest. Before proceeding to court, know that the courts are moving in a direction of more frequently awarding a 50/50 timeshare. If such a shared arrangement is in your child’s best interest then, before going to court, consider how you would like to exercise a 50/50 schedule. For example, you can alternate weeks and suggest that the exchange of the child be performed every Friday commencing with the retrieval of the child from school or perhaps every Sunday evening. If the alternating weeks is too long of a period of time for the child to go without seeing one parent, then in an alternate week schedule you can propose that every Wednesday (or some other weekday) the non-custodial parent have a dinner visit with the child. If an alternating week schedule does not work well for you, then consider a 2-2-5-5 plan. This basically means that one parent will have the child every Monday morning through Wednesday morning (drop off can be at school) and the other parent will have the child every Wednesday morning through Friday morning. The parents will alternate the weekends from Friday through Monday morning. If you map this schedule out on a calendar, you will see that one parent will have the child for 2 days, the other parent will have 2 days and each parent will have 5 days. In my opinion, the 2-2-5-5 schedule can provide great stability for the child because it allows the parents and child to know who will take the child to their extracurricular activities every Tuesday or who will help the child study for their Friday spelling test. In addition, if one parent is routinely late with taking the child to school or failing to assist the child with homework it is easy to identify the parent who is not fulfilling their responsibilities.

If a 50/50 plan is not what you desire, then explain to the court exactly what schedule you would like and why. Discuss how your schedule allows you to accomplish the scheduling you are proposing, and perhaps outline why the other parent’s schedule creates challenges for the schedule being proposed by the opposing party.

Janet E. Dockstader, is a partner with Brandmeyer Gilligan & Dockstader, LLP. She has more than a decade of experience negotiating marital settlement agreements and litigating Long Beach family law matters, including property issues, spousal support, child support and child custody.

Leave a Reply