Establishing Child Custody That Works
Few issues in divorce are more packed with emotion than the question of child custody. Where a child will live and how their parents will handle matters concerning their welfare are critical decisions.
One of the most useful tasks of mediation is finalizing custody decisions. Parents are able to express their worries and concerns without escalating the discussion to the court system. During mediation, parents often work out the details of their custody order cooperatively, which sets a positive tone for their ongoing relationship. I work with parents with the goal of making the transition as seamless as possible for all concerned.
It’s only when parents cannot agree that the matter requires the active participation of the NYS court system to work out custody decisions. A New York court can issue a child custody order only until the child is 18 years old.
If there is no court order, then both parents have equal rights to physical and legal custody of the child. Also, note that anyone who has an important role in a child’s life may ask the court for custody. They don’t have to be the child’s parent.
Note that this article focuses on related New York State guidelines and processes. Please consult with your local attorney and/or family court system to learn how it handles this issue.
What Are the Child’s “Best Interests?”
If attorneys or the courts are needed to sort out child custody issues, the professionals will use a standard referred to as the “best interests” of the children. The standards for those depend on the state you live in. New York State has its own interpretation of “best interest of the child.” Here are the factors that tend to be consistent across the country:
- The child’s wishes, if he/she/they is old enough to make that decision, but it is not determinative.
- The parents’ mental and physical health.
- The parents’ religion as it relates to the child. For example, the child has been raised as a Methodist, but only one parent will continue that tradition.
- The opportunity for the child to continue relationships with extended family, such as grandparents.
- Relationships with other members of the household.
- The school and community in which the child will live.
- The child’s age and gender.
- Any sign of emotional abuse or excessive discipline by one parent.
- Evidence of drug, alcohol, or sexual abuse by one parent.
- Which parent has been the “primary caretaker” of the child. This takes into consideration such daily activities as bathing, grooming, dressing, meal preparation, laundry, buying clothing, making health care arrangements, participating in school and after-school activities, and teaching the child to read and write. Many courts no longer assume that the mother is the primary caregiver—and with more same-sex marriages in the court system, the primary caregiver can be of any gender.
The Two Parts of Child Custody
New York State child custody guidelines define two parts of custody: (1) legal custody and (2) physical custody.
- Legal custody is about decision-making. In most cases, and in virtually all mediated cases, parents have joint legal custody. This means that they have equal input regarding major decisions about the important aspects of the children’s lives, regardless of which parent the child lives with.
- Physical custody is about the actual physical care and supervision of a child. It specifies who the primary residential parent (PRP) is. It also covers the parenting plan that lays out how the children’s daily lives will work.
Legal Custody Is About Decisions Concerning the Child’s Well-being
Legal custody determines how parents will make decisions about the child’s education, health care, religion, extracurricular activities, and similar issues.
- Joint legal custody occurs when both parents are involved in the child’s upbringing. Choosing joint legal custody (which most parents do) is not a function of the parenting plan or primary residency of the child. This type of custody is based on what is best for the specific family, and both parents must agree about the child’s upbringing, health care, activities, and other aspects.
- Split legal custody may work when each parent may be the primary residential parent (PRP) for one or more of their children. This can be part of a parenting plan (see split physical custody below) that applies under certain circumstances, such as when the educational or emotional needs of a child are complex and make switching homes difficult for the child. Each parent still sees their children on a regular basis, and often all the siblings are together for weekends or holidays.
- In unusual circumstances, a parent may be designated (usually by the courts) with sole legal custody. This may come up when issues arise about one parent’s fitness to make decisions for the child due to the parent’s mental illness, substance abuse, or similar debilitating conditions. Generally, sole custody would not be awarded to one parent because the other parent has characteristics such as different parenting styles, organizational skills, or annoying behaviors.
- Parallel custody is generally the result of a judicial decision that designates one parent in charge of sports, for instance, and the other parent in charge of education or medical decisions. It is usually the result of very-high-conflict parenting situation and the inability of the parents to make decisions together.
Physical Custody Is About Where the Child Lives
These details are spelled out in the parenting plan, which specifies which parent the child will live with most of the time. That parent is considered the custodial parent or primary residential parent (PRP). If the child spends half of his/her/their time living with one parent and half with the other, the parents have joint (or shared) physical custody. For the purposes of determining who pays child support to whom, however, one parent is designated the PRP, while the other is the non-PRP.
- Joint physical custody (often referred to as a 50:50 shared parenting plan) requires a high degree of collaboration in the child’s life. Daily details and logistics need to be coordinated. There is a high level of commitment and communication skill involved. This plan does not work well with high-conflict parents and the children are exposed to a lot of stressful conversations.
- Sole physical custody is reserved for unusual circumstances such as physical protection from an unstable or abusive parent. This means that the child lives full-time with one parent and sees the other on a very limited basis, or not at all.
- In some cases, parents choose split physical custody, an arrangement in which one or more siblings live with one parent while the other(s) live with the other parent. This often accompanies the situation when sole legal custody (described above) is chosen.
What Does Successful Child Custody Look Like?
How do parents know the child custody agreements they set up during their divorce are working well for them and their children? Consider this checklist:
- Parents agree most of the time about what’s in the best interest of their child.
- Parents cooperate reasonably well and can make decisions together. They communicate well and often.
- Parents live fairly close to each other, and a joint arrangement is logistically possible.
- Each parent is realistic about their schedule and commitments.
- The child has a consistent routine that they can depend on. Extra points if the daily routine (bedtime, meals) is consistent across both households.
- The child isn’t asked to take sides and never hears denigrating comments about either parent from the other.
- Both parents recognize the child has the right and the need to grieve and are supportive.
- Both parents are very involved in raising their children.
- The parents review and adjust the parenting plan regularly and as needed.