Managing Custody
in Family Law by Stephanie Blum
When couples with children divorce, one of the most important issues that must be addressed is the custody of the children. Who will have the children and when?
While that question may be simple, it is often the most difficult to navigate, and there is not one right answer. If the parents have an amicable relationship, it is a much easier issue to resolve than when they are in high conflict. What may be an appropriate arrangement for a 15 year old is likely not an appropriate arrangement for a 2 year old. What may work for a couple who now live a mile apart from one another may not work for a couple who plan to live 30 minutes or an hour away from each other. And of course, what if one parent wants or needs to move out of state?
California law provides that the public policy of the state is to ensure that the health, safety, and welfare of the children shall be the court’s primary concern in determining the best interests of children when making custody orders. The legislature has also declared that it is the public policy of California to ensure that children have frequent and continuing contact with both parents; however, that doesn’t mean that a court will necessarily order that parents will share custody equally.
When these two policies are in conflict, the court is required to prioritize the health, safety, and welfare of children. Ideally, parents should work together to reach an agreement about how they are going to share custody. A typical 50-50 parenting plan for school age children presuming the parents both live within reasonable proximity to one another and the child’s school, is to put in place a 2-2-5-5 schedule. That means in a typical week, one parent has the children on Monday and Tuesday, the other parent has the children on Wednesday and Thursday, and the parties alternate each week who has the children from Friday after school through Monday morning.
With this sort of a parenting plan everyone can plan their weeks ahead of time. For example, if mom has the children on Mondays and Tuesdays and dad has Wednesdays and Thursdays and the child takes piano lessons at mom’s house, everyone knows (the child, the parent, the piano teacher) that every Monday night, the piano teacher is at mom’s for the piano lesson. Similarly, if the child has soccer practice on Thursdays, then it will always fall to dad to take the child to soccer on Thursdays. It also makes it easier for parents to plan.
When going through a divorce it makes sense to consult counsel or a mental health professional with expertise in this area to help you work out an arrangement that suits your family. There are therapists with expertise in child development who can help figure out a suitable plan. A child’s developmental stage is important because, for example, a two year old shouldn’t be away from either parent for more than a few days since they don’t have the same capacity to remember people (including their parents) as a 9 year old.
Not only do folks have to work out their regular parenting plan, but they need to figure out how they are going to plan school breaks like Christmas, spring break, and summer vacation.
If you are getting divorced, obtain the advice of a professional to assist in navigating a parenting plan that makes sense for your entire family. If you and your former spouse are unable to work it out or resolve your differences in mediation, there is always the option of asking the court to make orders; however, then you are asking a stranger to decide what’s in your children’s best interests. Judges do have different views and perspectives, so when a court is asked to make orders, one never knows how it will turn out. Given the expense and uncertainty of litigation, it makes far more sense to come to some agreement, with the help of a skilled professional if need be, first!
(This article appeared in the July 2024 issue of Living Brentwood)