What Every Divorcing Parent Should Know about Custody

What Every Divorcing Parent Should Know About Custody

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If you have children with your spouse, divorce won’t be the end of your relationship. You’ll both need to figure out a partnership that works for your child’s best interests. Divorced parents typically share custody and need to communicate about everything from schedules to educational plans.

Here are some basics:

There is a Difference between Legal Custody and Physical Custody. 

Legally, there are two types of custody: “Legal” and “physical” custody. Parents typically share both kinds of custody, but it’s not uncommon for parents to share legal custody while one parent retains physical custody.

“Legal custody” is the power to make important decisions for the child, regarding educational, medical, legal, and religious decisions. Many families don’t have a problem communicating about these issues, but if a child is experiencing mental illness, educational challenges, or complex medical issues, it becomes more and more important that they are able to agree on a solution. In Massachusetts, if parents have a history of not being able to have productive discussions and come to a decision together, the judge may choose to award one parent sole legal custody.

Even if one parent has sole legal custody, the parent without legal custody still has a right to access the child’s medical and educational records, unless there is a court order prohibiting it.

“Physical custody” refers to where the child resides, and “primary physical custody” means that the child lives most of the time with one parent. Many courts have moved away from designating a “primary physical custodian” because the amount of physical custody a parent can have varies. Instead, courts may refer to parents having “shared physical custody” if they both have parenting time.

Parents Don’t Really have Visitation Time Anymore.

A “visitation schedule” kind of implies that one parent is visiting with their child, not parenting them. In reality, whenever a parent takes responsibility for their child, they are parenting, not visiting.

In that same vein, the parent is responsible for all of the child’s needs during their parenting time. Unless otherwise agreed upon, that includes the children’s clothes, shoes, toiletries, daycare, camp, or afterschool care, babysitting if something comes up, and staying home from work if the child is sick.

These days, courts use the term “parenting schedule” to refer to when the child will see each parent, or at least be under that parent’s responsibility. Parenting schedules are as unique as the families who put them in place. Each family has different constraints on their school, vacation, extra-curricular, and employment schedules. A good schedule not only addresses the routine parenting time, but also all of the holidays, birthdays, and vacations throughout the year.

It’s About the Child’s Best Interests, Not the Parents.

Ideally, divorcing parents agree to a parenting schedule that works most of the time for them, and all of the time for the child. If they can’t agree, then the judge will make a decision. The judge makes that decision by determining what is in the child’s “best interests.”

The “best interests” standard takes into account many factors, including whether the child is thriving in their current home environment, continuity at school and home, connection to extended family, and good relationships with other household members.

It’s also important to consider whether a parent has been abusive to the child or their partner, abuses controlled substances, or has made poor parenting decisions in the past. In those kinds of high-risk scenarios, one parent will likely be awarded sole legal and/or physical custody. The parent without custody may be awarded supervised visitation. “Supervised visitation” requires that another adult be present when that parent is with the child. The other adult can be a grandparent or friend of that parent, or a third party who is paid to supervise. Supervised Visitation Centers provide a neutral and safe location for these kinds of visits.

Ignorance is Bliss, for your Child’s Best Interests

It’s never appropriate to talk about parenting disagreements with the children or in front of them. Even though it may be easier to ask the other parent for a schedule change when you’re dropping off the kids, it’s best to keep that conversation to a time when the kids aren’t around.

Some parents ask children to take messages to the other parent. They can seem innocuous enough, like asking to switch a weekend, but it puts the children in a tough situation. What if they forget? What if they get the message wrong? Not to mention, the other parent is in a tough spot if they’ve already booked a vacation and you’re asking to take the kids to Disney World.

If you and your child’s parent can’t seem to co-parent effectively together, you may want to keep communications to text and email. That way, each parent can review the plan if they forget.

Many digital tools have emerged to reduce tensions and miscommunications. From setting up a shared calendar in Google Calendar to robust schedule-sharing programs like the Cozi app or Our Family Wizard.

Every family is different. What works for the Smiths next door may not work for your family. That’s where an experienced family law attorney can add the insight you need to solve a tough scheduling issue and advise you on what the courts would determine is in your child’s “best interests.”

Rebecca Neale

Principal Attorney

As an attorney, Rebecca represents people in divorce, custody, and guardianship proceedings. She also advises people about end-of-life decisions and creates estate plans tailored to their needs and goals. Read more about Rebecca’s Experience here.
Bedford Family Law

Bedford, Massachusetts

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