The Kids Are Alright – Don’t negotiate or litigate child custody without listening to this first!
In This Episode, CEO Erin Levine Discusses:
- How to get your kids through a divorce with the least amount of emotional damage and disruption to their lives.
- Why there’s actually a tremendous amount of flexibility when it comes to parenting plans.
- Why you need a detailed parenting agreement, and how to ensure your lawyer minds the details when it comes to finalizing that plan.
- How to determine a custody sharing agreement – and why the judge has more discretion in determining that breakdown than your lawyer will tell you.
- What to do if your ex has a substance abuse problem or a history of violence.
- How to think about health care, extracurricular and educational decisions for your child(ren).
- Vacation and holiday planning.
- Planning for good co-parenting communication with your ex.
Actionable Steps You Can Take Right Now:
- Follow expert advice compiled by experts in How to Succeed at Raising Your Kids Together, Apart
- Get some of our most valuable tips in It’s No Trick: Co-Parenting Can Be a Treat With These 5 Hacks
- Start working on your co-parenting plan by downloading our Co-Parenting Worksheet
- See amazing co-parenting in action in The Mindful Divorce: One (Ex) Couple Shares Practical Advice on Co-Parenting and Maintaining a Meaningful Relationship
- Learn about one of our favorite co-parenting apps and bookmark this collection of 26 ways to win at co-parenting this year.
Read the Transcript: Child Custody Hacks Your Lawyer Hasn’t Told You About
Welcome to the Hello Divorce podcast, I’m your host, Erin Levine. I’m super excited to share with you my top insider tips for divorce – including actionable steps in bite-sized pieces to lowering the cost, conflict, and confusion surrounding your divorce so that you can move on to that next awesome chapter.
Today’s topic is child custody. Most separating parents prioritize two things — getting your kids through a divorce with the least amount of emotional damage and disruption to their lives. If you identify with this statement, then you’re going to want to listen to this short, but meaningful podcast on how to develop a thoughtful and sustainable parenting plan – that gets you and your kids – exactly where you need to go. Regardless of where you are in the divorce proceedings and whether or not your case is headed to court – I expect you’ll find value in this episode. So keep listening to learn some actionable tips for maximizing your co-parenting strategy!
If you’re thinking about separating from your spouse, if you’re concerned that your spouse is going to ask for a divorce, if you’re already embroiled in litigation or are about to start mediation, or even if you’re just negotiating a parenting plan with your ex outside of the court context, you have a lot to think about. It’s difficult to know what to focus on so that’s why I’m here. To give it to you straight.
First things first – While a lawyer can share their experience of how to interpret the law or what the likely outcome is if you were to litigate (aka go to court), one thing you don’t hear too often is that there’s actually a tremendous amount of flexibility when it comes to parenting plans.
The one thing lawyers aren’t usually too concerned with is the details. I’m guilty too. We are so busy focusing on financials and the actual physical custody orders meaning – where your kids will live and on what schedule – we often overlook the specifics. It’s going to be up to you to ask for what you need and if you don’t – you could run into issues.
So why am I recommending such specific details in your custody orders? Well first of all – let me back up – what do I mean by “orders.” Orders are the terms of your divorce – like your parenting schedule – that are ultimately reduced to paper and signed off by the judge – usually called a divorce judgment or decree. The terms are either negotiated or litigated. If they are negotiated b/n you and your ex – they are an agreement that becomes an order. If you have to go to court – that is the litigation and ultimately it’s the judge that makes the terms that get filed and become an order.
Back to why I want you to have a detailed parenting agreement – If you and your soon-to-be ex-spouse are really great at negotiating and respect each other as parents and people – you likely are a great co-parenting team, and perhaps a flexible parenting plan will work out just fine for you. But, if you have a strained relationship or you had some major communication issues in marriage, and let me tell you, if you had communication issues in marriage, they’re going to be ever-present in your divorce. If that’s the case, you’re going to want to think through a parenting plan and strategy to help you obtain orders that cover all of your basis. Here’s why:
- Number one: Having a more specific parenting plan means that both parents have expectations (aka fair warning), and those expectations often lead to people following orders. When you follow orders, it’s a smoother co-parenting relationship.
- Number two: Some of you know that no matter how specific these orders are, your ex is just not going to follow them – regardless of the consequences. That sucks but – you still want them. This way we can give them “enough rope to hang themselves.” Meaning – that custody (unlike many other areas of divorce law) generally can be modified down the road. An agreement is a living, breathing document and even orders made by a judge – can be changed down the road. So, if you’re pushing for more custodial time and you don’t get it this time around, you’re going to need a path forward so that at the next opportunity to negotiate and mediate or litigate, you’re ready to go and you have leverage. Well, what better leverage than to have had an order or an agreement that your spouse just wouldn’t follow? Because if they can’t even follow something that was ultimately ordered by the court, that the court signed off on in your divorce judgment or decree, then they certainly shouldn’t be entitled to more orders that give them broader access or control over your kids.
Now let’s get into the nitty-gritty. In most states, what your lawyer or advisor is likely going to tell you is that a 50-50 custody schedule is quite common – even if that makes your heart hurt. But – what they don’t usually tell you is that most of the courts have laws that are quite flexible and that allow a judge a lot of discretion. That doesn’t mean that you can come in and just say to your judge or mediator, “I want to have 80% of custody because I was the primary parent during our relationship,” because quite frankly, that argument generally doesn’t hold up. If one parent wasn’t as involved in parenting during the marriage, the courts, at least to start, are generally going to give that parent an opportunity to step it up at divorce.
But that doesn’t mean you don’t have a case. There are arguments that do help, and some of those are legal-based, but a lot of them are based on the advice that we receive from an experienced mental health professional. So if you and your spouse agree to go to co-parenting counseling, hooray, that’s amazing. But even if your spouse doesn’t agree to go there, you might want to meet with a co-parenting counselor, or other psychotherapists, or professional in that field on your own – because, (a) their advice is generally more affordable than that of your lawyer, and (b) they usually have some really great ideas on how to set up your argument for custody such that it is really persuasive to your ex, a mediator and/or a judge.
Let me give a couple of examples. A mom that’s breastfeeding. Right? It’s really hard to have a 50-50 custodial situation when you have a three-month-old who is dependent on mom’s milk. Another example is a child who has special needs where one parent is very attuned to those needs and the other parent is not. In that situation, you’re likely to have a really strong argument as to why custody should be unequal – with the more – shall we say – responsible parent having more time with the child.
But what if you are totally cool with a 50-50 schedule – 50% with one parent and 50% with the other. Isn’t that the end of things? No. There’s a whole bunch of other factors that I want you to think through. The first one is, what’s the best schedule for your kids? Does it make sense to have a week on, week off? Probably not if you have young kids. Imagine your two, or three, or four-year-old going a week without seeing you. Probably not the best option for them – even if you do want to avoid exchanges with the other parent as much as possible.
When you’re thinking about a parenting plan, take a look at the resources we have on Hello Divorce or other reliable sites or books, and educate yourself on the different options. For younger kids, we usually go with a two-two-three schedule. One parent has Monday, Tuesday, the other parent has Wednesday, Thursday, and then both parents alternate weekends. Note that whatever agreement or order that’s ultimately established in your case, is just a “default parenting plan”. So if you’re able as time goes on to be more flexible with your ex: awesome. And quite frankly, usually, as time goes by, exes are able to work with each other much more easily – there’s a flow that comes from co-parenting over an extended period of time. So, if that’s your situation, you can change the schedule or modify it for vacation plans, and this, and that, but what I’m really focused on here in this podcast today – is that default schedule that you start with.
One thing that I’m not addressing today, but is very important – is if you have an ex who has substance abuse issues, anger issues, or some type of issue that makes it unsafe for your child to be with the other parent. In that situation, you really want to be talking to a professional about whether or not supervised visitation or any visitation at all – is proper at this time.
Ok, moving past the parenting schedule and into shared parenting decisions. So again, the more you think through this, the more likely you’re going to end up with an order that works for you and your kids, and the less likely you’ll need to spend big money on a lawyer down the road.
First off – health care decisions. Think about – what happens if your child is injured at school, or an extracurricular activity, or church, or synagogue? Which parent should be called first? Should a new partner, new stepmom, stepdad, boyfriend, girlfriend, grandparent be on that emergency notification list? Who will accompany your child to their annual physical exam? Who can make those appointments? How will each parent be notified? How and when will you decide whether or not your child needs mental health care, and who gets to make that decision? Is it that both of you need to jointly sign off? Can one of you enroll the child in mental health care and simply notify the other? Can both of you administer medical prescriptions or over-the-counter medications?
When it comes to educational and extracurricular decisions, I want you to think through which parent will be primarily responsible for registering the kids in extracurricular activities. Will you do it together? Will you simply plan an extracurricular activity for the times that your kids are in your care, or might it be something that’s going to spill over into the other parents custodial periods – like soccer games or basketball games for example – that could land on your ex’s parenting times – and will they cooperate with getting your kids to these events? If you don’t think they will, maybe this is something that you need to ask the court for.
Now, a couple of caveats if I’m overwhelming you. In most states, whatever order you start with or agreement you start with can usually be modified if it’s not working. So if you have recently divorced or you’re about to finalize your divorce decree and don’t have all these terms in it, that’s okay. This is certainly something that you can come back to later. Parenting timeshare is different though. You’ll want to chat with a lawyer if you are really compromising – to the point of it going against your best judgment – because changing actual timeshare percentage is much trickier – do-able in most circumstances, but not easy.
Moving on – we are covering a ton of ground here. Let’s turn to vacations and holidays. One order that I’m not really particularly fond of, but a lot of people ask for from their spouse is the ‘right of first refusal.’ That is, “Hey, if you have to go to work for an extended period of time, if you have a business trip, if you’re going to go stay at a hotel with your new partner – instead of bringing the child to grandma, or a babysitter, or a close family friend, I want a right a first refusal. Meaning, I want you to ask me first if I want the child back with me before you arrange for some kind of childcare.”
When you’re thinking through a right of first refusal, you want to think about, well, how many hours does a parent need to be away before the right of first refusal is triggered? Is it three hours? Is it overnight? Is it a week’s business trip? But really think through that if you’re going to ask for something like a right of first refusal, and if you do ask for it, I would simply say that try to limit it to the first couple of years of your separation. After that, the likelihood is that both of you will have really busy lives where you’ve now brought in other people, maybe even a partner to support you, and you may want to have your child home with that partner while you’re away. Keep stability for your kids and really establish this new home life with your child.
Next – think through vacations as well. How many uninterrupted weeks of vacation will each of you get during the year, and will there be a requirement that you provide itinerary to your ex? Will there be a requirement that there’s phone calls or texting with your child or maybe even Facetime?
And holidays – So the default here is generally, most people choose to alternate holidays. But what exactly is considered a holiday? Is Thanksgiving Thursday night or is it Wednesday night through Sunday? Does alternating necessarily make sense if you both are in town for Christmas, or does one parent celebrate a holiday with the child that the other parent doesn’t really care about? Are there considerations you want to include in your parenting plan for holiday travel like passports, international travel, a certain amount of miles away from a child’s primary residence, camping where there’s no reception? These are the things you want to think about.
If you’re still with me, you’re doing great. Note, that many of the stuff I’m talking about is available in the form of resources and worksheets and even blogs on the hello divorce website. So don’t feel like you need to stop the car to take notes.
Ok, I want you to think about managing communication with your ex. Will you use a shared google calendar? Will you use an app like Fayr, F-A-Y-R, so that the two of you can manage your communications, and calendaring, and child support, and extracurricular expenses, medical doctors, and things like that? Ooh, if your children are little, consider also having a magnetic calendar from Mighty and Bright. They have cute illustrations that show young kids which parent they will be with on which day and even magnets for fun events like birthdays, vacations, and holidays. But back to communication – How will you communicate, facilitate communication between your child and your ex while your child is in your care, and how will you facilitate communication between you and your ex such that you are protected from a really toxic ex, but you’re still able to communicate? Sometimes, we need some really serious tools to be able to manage that communication, especially if one parent is abusive.
When cases are really high in conflict, the parties can choose to use a special master or co-parenting coordinator. So this can be either an experienced family law attorney or more often, a very experienced mental health professional who can step in and handle major communication issues that need immediate attention. So they’re kind of like neutral, but they do often have the authority to make a decision when parents are fighting. This is something that you should look into if you have a particularly complex or high-conflict child custody arrangement. It’s scary to delegate authority to someone else – but sometimes that’s better than fighting every day or week with a narcissist. There’s always an ability to motion the court if you really think your special master is out of line or biased.
So if this was helpful to you, I’m thrilled, and I would love for you to let me know and review or rate this podcast. And, regardless of what state you’re in, head to the Hello Divorce website. Click on “Kids.” Find that shared parenting plan worksheet and download it because it’s going to have all the topics I addressed today, and you can start identifying what it is that you want to ask for from your ex or if necessary, the court. I also encourage you to take a look at our other resources, and if you are on the site, and you’re looking, and you just can’t find what it is you need, feel free to email us. You can use my email address, erin [at] hellodivorce.com, and we will help you find the information that you need.
And finally, if you are in CA, schedule a 15 min strategy session by clicking on the link on our home page.
Keep listening to this podcast for actionable tips to keep your divorce amicable and affordable.
And of course, to cover all of your legal bases so you are ready for your fresh start.