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Author Topic: Understanding How Custody Works  (Read 545 times)
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« on: January 11, 2015, 08:36:59 PM »

Understanding How Custody Works

Information for this article has been excerpted and adapted from "Co-Parenting"by Michael Scott, 2002


Parenting Plan

More collaborative terminology would be helpful in lowering the stress of an already difficult situation. For example, rather than using the terms “custody” and “visitation,” try using the more emotionally neutral term, “parenting plan.” This term contains the more normalized concepts of a child sharing time with or living with each parent at different times. In a written parenting plan, sentences begin with, “The child will share time with (or, live with) each parent according to the following schedule:” rather than, “The Father has visitation on alternate weekends.” Even if the child sees one parent only once a year for a few days, the child is still sharing time and living with that parent during that time period.

The time sharing plan should take into consideration what that child has become accustomed to, regarding the parenting style and arrangement during the time of the intact relationship. This is critical for the adjustment and stability of the child during the often chaotic and stressful period following the break up. If, during the relationship, there had been a primary parent carrying out the major responsibility in time and effort, then such should remain the initial basis of a parenting plan. It need not remain as such forever, but it should begin with the status quo from the child’s view, and be modified gradually over time. It is important to understand that no agreement is written in stone. All parenting plans are negotiable, as various needs arise that necessitate modification of the plan.

If a child is to be with one parent significantly more of the time than with the other parent (for example, when the two parents live a considerable distance from one another), I suggest replacing the traditional term of “custodial parent” with the less emotionally charged concept of “the child’s primary residence” and “the child’s secondary residence.” Of course, if the child shares time fairly equitably between the parents, then there is no need to designate either parent’s residence with such title.

For co-parenting to be effective, both parents need to consider the needs of the child above their own needs. A written parenting plan provides the structure necessary to get through a difficult time. It is like a map that gives directions on how the two of you agree to parent your child. This structured agreement offers the basis of security upon which the former spouses can build trust. A parenting plan should be built on a foundation of the developmental needs of the child. It is often useful to seek sound professional advice about the needs of children at different ages in devising a parenting plan.

It should be understood that what is appropriate for a child at a certain age will not necessarily be appropriate for the same child at a later age. The child’s temperament and response to changes should be addressed and monitored. For example, how adaptable is your child? How easily can he or she handle changes? How sensitive to stimuli is he? How much does she need a highly structured routine? How distractible is he?

Also the child’s sense of time is an important factor in considering the duration a child can cope with separation from a parent. For example, young children (under five years of age or so) have only about a three-day memory for an absent parent. After about three days with no contact with the other parent (including no phone contact), these children may begin to show distress, because they have begun to “forget” the other parent, and thus they may feel abandoned. As children get older, they can handle increased time away from each parent. These facts, of course, mean that an agreement cannot be permanent but rather is always only temporary, good and useful only until the child and/or the circumstances change. A parenting plan should include a regular school year schedule, a summer schedule, and a holiday schedule. Consistency, especially in the initial phases of the arrangement is important. Once an agreement is reached the less there is to negotiate and the more that trust can be established between the parents. This is beneficial, since ultimately, it will likely nurture more flexibility between the parties.

The day-to-day parenting plan should take into consideration the reality of the child. For example, if the child is young, and/or has awareness that one of the parents has been the primary source of parenting, then such would be the starting point of the negotiated agreement. Gradual shifts from what is familiar to the child to what is possible are best for children. To alter this too suddenly would be more about meeting the needs of the adults than of the child. The child is then forced to sacrifice his or her needs, rather than the parents more appropriately making sacrifices for their child.

Responsibilities can be negotiated (for example, who will take the child to medical appointments, purchase clothing, etc.). Such responsibilities can be shared or specifically assigned to one parent, but it should be acknowledged in the agreement. If the parents have a comfortable level of communication, the flexibility to modify the agreement can be accomplished through mutual consent. If there is difficulty communicating, then it is more effective to keep the agreement structured, with little modification. Of course, it is helpful to specify how minor modifications can be made when a legitimate need arises (e.g., when one parent is tied up in traffic and does not make it on time to a scheduled transfer of the child; or, for example, when a child is very sick and transfer to the other parent is medically inadvisable).

It is also useful to set out specific guidelines for communication. These may include when, for how long, and how frequently the parents agree to talk business with one another regarding financial matters, legal matters, etc. Also, specified time should be set aside to discuss the children. It is critically important that these discussions NOT take place in earshot of the children. Such negotiations can frequently lead to conflict and even minor conflict in front of the children of separation and divorce can be distressing to the children.

Legal Custody

Legal custody is a designation of parental authority to make major decisions regarding the health, education, and welfare of the child. Some examples of such issues that need decisions would be as follows: Does the child need braces? What school will the child attend? What religion will the child practice? The typical options for Legal Custody are either Sole legal custody, or Joint legal custody. A parent with Sole legal custody has authority to make all major decisions about the child. Parents with Joint legal custody share the authority to make major decisions about their child.

Physical Custody

Physical custody designates the amount of time a child shares with each parent. The typical options are Sole physical custody or Joint physical custody. A parent with Sole physical custody has responsibility for the child the significant majority of the time. Parents with Joint physical custody share responsibility for the child’s time within a more equitable schedule. It is important to note that neither Joint physical nor Joint legal custody necessarily mean an exactly equal time-sharing arrangement. The legal definitions of these terms have purposely been left general and broad by the legislatures, so that any specific application could take into account the particular needs of a given child and his or her family situation. Any and all time-sharing plans should be based on the very broad standard of “the best interests of the child.” It should take into consideration the child’s developmental needs.


Another term to define is visitation. This is generally considered to be the time that the child shares with the non-custodial parent. Notice these highlighted terms -custody, visitation. They sound like the child is a piece of property, or a prisoner.

Rather than viewing the separated family arrangements in traditional legal terms, it is more valid, psychologically speaking, for physical custody to be conceptualized from the point of view of the child. We know that, with rare exceptions, it is in the child’s best interest to have regular and continuing contact with both parents. And, with very young children (under the age of 4 or 5), it is important if at all possible to have frequent contact with each parent. This is because of their very limited memory, which after only several days fades the image of the missing parent. This all is to say the child’s rights have to supersede the parent’s rights. It is the child’s right to have access to both parents. It is the parent’s obligation and responsibility to be available and to care for the child.


Technically, co-parenting exists with any parenting arrangement, regardless of its formal designation. In whatever way each parent is involved in raising the child, the parents co-parent. Most effective co-parenting arrangements contain the following characteristic dynamics between the parents: cooperation, communication, compromise, and consistency. These dynamics often grow over time and typically take a period of years to evolve effectively.

Parallel Parenting

While meaningful co-parenting can only be carried out by parents in a working, functional, parental relationship, parallel parenting is more characteristic of parents in a dysfunctional relationship dynamic. Parallel parenting manifests when there is an insufficient degree of cooperation, communication, compromise, or consistency to carry out co-parenting. Frequently, in the beginning stages of a separation or divorce, parallel parenting may exist as a result of the lack of trust and sense of betrayal. While most parents are able to work through these dynamics to establish a more cooperative relationship, some parents are not and they remain in a power struggle that affects all negotiations between them. Certainly, when post-divorce parenting arrangements are Court-ordered in an adversarial court battle, such on-going patterns are common.

Children in parallel parenting arrangements often experience heightened anxiety during phone calls from the other parent and during transfers between parents. This anxiety results from the child’s awareness of the great potential for parental fights to ensue at these times. It is important to protect the children from this potential for parental conflict to erupt. Minimizing verbal and physical contact between the parents can help. It is often useful to utilize written communication (letters, faxes, e-mail, etc.), or a third party, for communication purposes.

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