What is the most sensible approach to becoming the most well-functioning dual-residence family possible?
To state the obvious, there is no more emotionally charged issue in a divorce than child custody. The idea that any person, including a spouse, has the authority to “take” one’s children away from him or her for any periods of time provokes a primal reaction in most parents. This may be more upsetting for the party who did not want the divorce and/or it may cause a parent who has committed marital fault or who wants “out” to retreat from the children out of guilt or fear. Child custody issues can drive the most rational human being to rage and despair. You may not be able to control what has happened; but you can control how you react to this trauma to you and to the children. The issue is simple but true: To re-build from the damage or to inflict more damage?
For this reason, it is critical to choose a separation/divorce process, like mediation, which assists parents to acclimate to the tragic turns their lives have taken through separation and divorce, instead of the process of adversarial negotiations and litigation, which step-by-step ratchets up the stress, costs, anger and desperation for both parties and the children themselves.
In mediation, the parties themselves, as co-parents determine how important decisions will be made about the children. This is called “Legal Custody.” Examples of such important decisions controlled by Legal Custody are:
1.) Where the children will live?
2.) Where will the children attend school?
3.) What will be the children’s religious upbringing?
4.) What medical choices will be made for the children?
There are more options that simply “sole” custody and “joint” legal custody. A creative neutral mediator can help you tailor your situation to meet the needs of your dual-residence family.
“Physical Custody” refers to the schedule that controls when each party shall have the children. The function of determining physical custody aside from assigning each party his or her rights to see the children on a regular, scheduled basis, is to help calculate child support. It is not for the purpose of assigning one party more importance than the other. Parties can share legal custody while one party has sole physical custody of the children or vice versa.
From a maximum 50-50% physical custodial sharing of overnights down to the point where one party has at least 35% of the overnights (128) and the other party has 65% (237), the physical custody is by definition “shared.” If the party having fewer overnights, has less than 128 overnights, then the opposite party has sole physical custody under definitions found in Maryland child support law.
Could two lawyers better negotiate or would a judge better decide the specifics of the family’s scheduling better than the parents themselves with the help of an experienced, neutral mediator? In mediation there is a presumption that the parties know the children better than attorneys or judges.
Physical custody breaks down to three basic segments:
1.) What will be the regular schedule? (It may differ in the summer from the academic year)
2.) What will be the holiday schedule?
3.) What will be the vacation schedule?
Like legal custody agreements, there are many types of physical custody arrangements. Typically holiday and vacation negotiations and agreements in mediated agreements are very dual-family-specific.
The legal standard for deciding custody issues, legal and physical is simple: What is in the children’s best interests? A mediator is trained to guide the parties to make decisions for the children’s best interests and to guide the parents’ focus from his or her own needs, hurt or anger. A mediator will try to train the parties how to approach issues in the future to become successful co-parents. Mediation of child custody is a reconstructive approach to child custody whereas litigation often inflicts additional damage to the parties and the children.
Important points of discussion in mediation relating to custody include (but are not limited to): The age, health and gender of the children; the proximity of the parents’ homes to one another; where each party’s home is in relation to the children’s school; what each party desires with regard to custody; whether one party was the primary caretaker of the children and whether that is feasible in the future; the employment schedules of the parties or in the future; what is each party’s involvement with the children (from driving to school, to giving baths, to feeding, to coaching sports teams) what is the preference of the children; has either party been separated from the children, and if so, for how long; the basic fitness of the parties to parent the children; prior agreements relating to custody and what the actual custodial sharing of the children has been during the separation.
In Maryland, the Court has the authority to order the parties to mediation for child custody disputes; and that will usually occur absent a family history of abuse or violence Md. Rule 9-205 http://www.peoples-law.org/node/710. The same is true if one party is seeking to change the current child custody arrangement. Child custody can vary over the years based on changes of circumstances. Examples of a change of circumstance include (but are not limited to): each child’s maturation and changing schedule preferences; a change in how a child is reacting to the current custody arrangement; and changes in the parents’ lives like a change of residence or employment schedule.
Child custody issues may arise, whether the parties are married or unmarried, divorced or never married. Which party has custody affects financial issues such as child support, tax dependency exemptions and tax filing status. But mostly, child custody and the parties’ success in co-parenting after separation or divorce may mean the difference between emotionally well-adjusted children and mal-adjusted children, and of course that best interest must be the focus of the decision-making process. The path to making positive choices starts with a positive process like mediation. In general where the parties begin their lives as separated co-parents in litigation, they continue litigation throughout the child-rearing years. Where the separated co-parents begin in mediation to make productive, restorative choices for their children’s lives after the trauma of separation and/or divorce, very often they learn to approach future problems constructively, often by themselves. When a dispute arises that they cannot resolve themselves, they go to mediation for help to keep them positively on track to continue on as healthy, well-adjusted dual-residence families.
Nancy Caplan, Esquire has mediated hundreds of child custody matters with great success.