Sometimes, Losing Custody May Be the Best Outcome for Your Children
As a divorce lawyer, the first question most parents ask me is, “How do I win custody?” This is understandable. Any parent’s fear when separating from a spouse or partner is that he or she will lose control over the kids, or lose the right to spend time with them. Who wouldn’t fear this? The worst stories about separation and divorce are about losing custody.
While my personal experience has been as an attorney working with cases of divorce in Vermont and Massachusetts, I hope that the insight I have gained can be helpful regardless of what state you live in. In short, I believe there’s a great solution to this fear of losing custody, though it can be difficult to achieve. That solution is shared or joint custody.
Why Joint Custody is Often Best
Here are some ideas about what joint custody means and how you can get there.
First, though, remember that there are two types of custody. One is legal custody and the other is physical custody. Legal custody is the right to make the big decisions for the kids, like where they will live or go to school. Physical custody means the right to have the kids living with you. Either one or both of these types of custody can be shared.
1. Custody Is Not Something You Win or Lose
Although you will hear parents everywhere claiming that they won custody or complaining they lost custody, these concepts don’t really mean anything in most cases. Custody is, for better or worse, more complicated than that. I like to talk about custody issues as creating a parenting plan. And if you think about it, that makes sense: raising kids is complicated, and it takes some planning. Especially if you have two households and the kids are going back and forth between their parents’ homes.
Both Parents Take Part in Building a Parenting Plan
The reason why custody is seldom won or lost is that, except in extreme circumstances, each parent is going to have to take part in the parenting plan. You’ll win some and lose some in this battle over custody.
2. The Best Custody Is Shared Custody
In spite of what I said above, if a judge has to make a final decision on custody, one or the other of you will be getting primary physical custody. What does that mean? That the kids will spend more overnights with one of you than the other. That’s it.
But the best outcome for both you and your kids is usually shared custody. If you and the other parent share custody, there’s lots of flexibility around where the kids go and when, and the least oversight from the court system. There’s more flexibility for you, too. If you have your own needs to schedule things around (work, vacation, a new relationship), you can agree with the other parent to change the parenting plan on the fly, either temporarily or more permanently.
“Losing Custody” May Be Better for Your Kids
It’s better for the kids, too. If children see their parents working through decision-making together, even if it’s hard to do, you are modeling the best kind of behavior. Even if you feel like yelling at that other parent, imagine what you are showing your kids by behaving in a calm and productive way – even in the most difficult circumstances! Your kids are more likely to be able to have positive relationships themselves if they’ve seen how you are able to do it.
3. What Does Shared Custody Look Like?
So, practically speaking, how does shared custody work? First of all, you have to agree to it. In many states, a judge cannot order joint custody unless both parents are willing to try to work together. You can imagine why this is so. It would be unlikely that the two of you can make productive decisions for the kids if you can’t even agree to try to do that!
The simplest form of shared custody is an order that says this: the parents will share jointly legal and physical custody. That’s it. What does it mean? You’re going to make decisions about the kids the same way you did while you were together. You’ll need to be able to talk about where they go to school, whether they get braces, where they’ll be staying overnight and on what schedule. This is going to be a lot of work, of course. But it has the most flexibility for you and for your children.
There are other variations; you could agree to a parenting plan with a specific schedule, but also agree to share legal custody. You would then have a regular schedule for physical custody and visitation, but you would make big decisions for the kids together. Or you could agree that one parent will make decisions about medical care and the other parent would make decisions about school.
4. What If Share Custody Doesn’t Work?
Okay, sometimes you make a real effort to share custody and you can’t agree. Maybe it works for a while but then you get bogged down in your disagreements. What do you do?
The court can help. Remember, as long as your children are minors, the court has jurisdiction to make decisions in their best interest. So you can file a motion to change custody to yourself based on the fact that the joint custody arrangement isn’t working.
I really encourage everyone who might be able to work with the other parent to try, and try really hard, to work out a shared parenting plan. The kids I know who have done the best with a divided family have parents who worked incredibly hard to parent together, even though they weren’t with each other anymore. If you think that you and the other parent might be able to work through it, give it a chance – for your kids.
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