Custody and Visitation Defined

In my work as a Divorce Mediator, one of the most frequently ask group of questions my clients ask me is – “What custody and visitation really mean”, “What is Residential/Primary Parent”, “What is Joint Custody”, etc. In the past, the mother always got custody and the father had visitation with the kids on the weekends. But today there are many options for custody and visitation open to parents. Researchers have found that children are happier and more secure when both parents are present in their daily life. Many fathers want to be closer and have more time with their children. This trend has led to different custody and visitation agreements and terminology.

In the past, custody was given to the primary caregiver for the children and visitation given to the secondary caregiver. Many times it was assumed that it was best for the children to spend the majority of their time with the mother. However, many studies have shown that this is not always the case, and that a balanced parenting agreement works better for the children in many cases. Unfortunately, this can cause major battles in court over who gets custody of the children and what truly is in their best interests.

Custody and visitation are legal agreements.

It can be up to the courts or the parents to decide what agreements are in the best interest of the kids. When there are serious concerns such as abuse or drugs involved, it can be very important to carefully consider the terms laid out for Custody and Visitation. Other important issues to consider are having legal plans for if one parent moves out of state how that will affect custody and visitation. Having a divorce mediator to review possible scenarios can ensure that you proactively lay plans out for various situations that could arise. This can help protect you from the need to litigate to protect your parental rights down the road.

A second major question that arises in terms of custody and visitation is that of primary residence. In the family situation before divorce, both parents normally have equal time with the children. To suddenly be threatened with limited time and access to your kids can be extremely upsetting. When a parent feels they may lose time with their children, it can turn a once amicable divorce into a heated court battle. In my practice, I am always amazed at the heat and intensity parents have around this issue. In my experience, instead of naming a parent as “primary”, thus making the other parent feel they are “secondary”, you can simply name a physical address as “primary”. Here are some reasons why it makes more sense to name residence as “primary” versus a parent as “primary”:

• It gives one primary residence for the kids schools and colleges for residency purposes
• The kids only need to remember one address instead of two
• One address for important documents to be mailed to
• It alleviates one parent feeling like they are the secondary parent
• It alleviate a unnecessary court battle over something that is trivial

The word “Custody” in itself can be a very polarizing word. Many people say they want custody of their children without knowing what that means. They believe it means that the children will live with them. However, this is not true. Custody is a legal term and is broken down into two types, Joint Custody and Sole Custody. These terms refer to decision making for the children and have nothing at all to do with parenting time, visitation, or the amount of time the children spend with each parent.

Joint Custody means that the parents are able discuss and agree on the major decisions that happen in their children’s lives, specifically, schooling, religion, extra-cirriculars and medical, dental, orthodontia and vision. When parents are on the same page with these categories, Joint Custody is chosen.

However, when parents have fundamental disagreements on one, some or all of the above categories, or one parent disagrees with the other simply to be difficult, then Joint Custody will not work and one parent needs to have Sole Custody. This means that the parents must discuss all major decisions regarding their children’s lives, however, if they are unable to agree on an issue, the parent with Sole Custody makes the final decisions. This is why, when going through a divorce, parents need to strongly consider whether Joint or Sole Custody is in their children’s best interests.

Good luck in deciding what is best for your children in terms of custody and visitation. If you find yourself having a hard time agreeing, a professional mediator can help you lay out a custody and visitation plan so you can keep the battle out of court and save time, money and headaches.

Brian James is an experienced divorce and family mediator with offices throughout Chicagoland and Southeastern Wisconsin. He runs a mediation practice, C.E.L. and Associates where his approach to mediation is client driven.