Divorce and Child Custody: 6 Rules of Engagement

After years of miscommunication and frustration, you and your spouse finally agree that divorce is the most logical next step. If you are also parents, you may face some difficult decisions regarding the ongoing care of your children and your involvement in their lives moving forward.

Determining child custody can be an overwhelming scenario divorcing couples face. But with a better understanding of the “rules of engagement” regarding your rights and arrangements, you can work through this challenging time and help your children deal with the changes in the best way possible.

Rule 1: Work on a parenting agreement.

Divorcing parents are usually encouraged to come up with a custody agreement, also called a parenting plan, usually with the help of their attorneys. Ideally, a written parenting agreement or plan defines how both parents are going to share time and decision-making regarding the children.

It helps set the stage for a successful post-divorce relationship because it sets clear expectations, which in turn can reduce conflict between the two of you and lessen a child’s confusion regarding roles, schedules and commitments.

You can work with your spouse to negotiate and write down a parenting agreement yourselves or you can seek the help of a child custody mediator or other specialist. Whatever agreement is reached, it’s important to know that your parenting agreement can be made into a court order so that you can enforce it if your spouse doesn’t live up to its terms.

Rule 2: Know the different types of child custody.

The parenting agreement is largely designed to determine how child custody will be handled. The term “child custody” refers to the rights and responsibilities parents have for taking care of their children. Topics like child custody will typically be included in the final divorce decree, also known as a judgment of divorce, which essentially declares that your marriage is dissolved.

There are several types of custody, so it’s important to know what type of custody you’re deciding on. For example:

• Legal custody refers to your ability as a parent to make the major decisions about a child’s life, such as medical treatment, which school he or she will attend or whether they will be raised according to certain religious beliefs.
• Physical custody is when you gain the right to have the child live with you and involves his or her day-to-day care. When the child lives primarily with one parent, that parent is recognized as the custodial parent with full physical custody or sole physical custody. The other parent is considered the non-custodial parent and would be awarded visitation rights. It’s also possible that you may share physical custody with the other parent, which means the children alternate between households.

Note that the rules regarding legal and physical custody vary by state and individual circumstances, so it's generally best to involve an attorney to ensure the best outcome for your kids.

Sharing child custody

When it comes to deciding legal and physical custody of the children, courts can and do make any number of arrangements. Some parents may share physical custody but not legal; some may share legal custody but physical custody may be split to accommodate living with one parent while going to school and visiting the other parent in the summer. Here are some of the terms related to how custody is commonly divided:

• Sole custody means only one parent has the legal capacity to act on the child’s behalf. In physical custody, this often means the child spends all, or a majority of time with this parent.
• Joint custody means both parents share joint legal custody and joint physical custody. This arrangement can be established either by a parenting agreement or it can be ordered by the judge.
• Split custody is where custody is shared equally or at least one parent has substantially more time with the children than the other. In many cases this exists when one parent is the custodial parent during the school year and the other during summer vacation.
• Third-person custody is when a court awards custody of the children to a third party if they have sought custody. The third party (e.g., a grandparent) may have become the primary caregiver for a child or children when circumstances arise where the parents are unable to care for the children or due to the death of the biological parents.

If you cannot agree on a custody arrangement, the judge handling the divorce will decide the matter for you. The child custody laws in most states require judges to consider the best interests of the child when it comes to determining custody. Several factors are considered, such as:

• The physical, mental and emotional health of each parent.
• The community, including schools, to which the children already have ties.
• The parents’ financial status and ability to provide a home for the children.
• Any history of child abuse.
• The relationship the children have with each parent.

Rule 3: Come prepared for child custody proceedings.

If you and your spouse are not able to work out a child custody arrangement, you will need to attend family court with the goal of ruling for an arrangement that will be in the best interest of the child(ren).

A child custody hearing is a proceeding used to determine temporary orders and some procedural matters. A child custody trial is when you and the other parent present evidence and arguments for the judge to use in making a final decision. The judge will also review your rights and duties as a parent. When deciding on custody, courts can make any number of arrangements. For example, some parents may share physical but not legal custody, or vice versa.

Prior to your court appearance, it’s best to work with an experienced attorney who can walk you through the proceedings and outline what to expect. Additionally, be sure to document all your interactions with your child(ren), as well as any discussions with your spouse, whether it’s in person or phone calls, emails, texts, etc. Finally, it’s not a bad idea to dress in appropriate attire to make a favorable impression.

During the court proceedings, be prepared to:

• Answer questions from the judge regarding details of your day-to-day schedule and your ability and resources to care for the child(ren).
• Present documents that indicate things like your employment status and income.
• State your case in a succinct, rational manner for why you should be awarded partial or full custody.

Also, try to not point fingers or lay blame on the other parent during the proceedings, as the judge’s main role will be to evaluate the information you provide to the court, not personal opinions.

Rule 4: Understand your rights for visitation.

If you do not have physical custody of the children, it’s still possible for you to have visitation rights. A visitation schedule is usually decided between the parents, but if you cannot agree, a judge may decide the matter for you. Visitation is different than custody, as it is typically defined as how you will spend time with your child.

Visitations may be unsupervised, in which you can visit your children without the other parent present, or supervised, in which a third party is present to monitor your interaction. Supervised visits are required when one parent may present a possible threat to the children.

Make the most of your visits by actively listening to your child(ren), limiting distractions (like a text or call that comes in) and being fully engaged in whatever activity you’re doing.

Rule 5: Show up on time, keep your promises.

Regardless of what type of custody you’ve been awarded, or what your opinions may be of the arrangement, your main job is to keep up with your end of the deal. That means showing up on time for court proceedings, scheduled visits, events or school and daycare drop-offs/pick-ups. Also refrain from talking about the status of the divorce proceedings in front of or to the children.

Make sure that any promise you make to your child is realistic and can be readily kept. For example, a trip to an amusement park that’s canceled at the last minute will only work to erode the trust and stability you’ve worked so hard to build. Also, never think that gifts can make up for being consistently late or failing to follow through with your promises.

Remember that the most valuable thing you can give them during this difficult period is your time.

Rule 6: Learn how to talk to kids about divorce.

Even in the most “friendly” divorces, children rarely have much say in what’s going on, yet are greatly affected. Even if they know they are loved by both parents, it usually takes many years for children to understand the situation. The good thing is that the majority of children do adapt. Here are a few ways to help them through the transition:

• Watch for signs that they may be having a hard time with the issues and be open to counseling for that child or for you and that child when they need it.
• Never talk poorly about the other parent in front of your child. This creates resentment and bad feelings all around.
• Be open and upfront about the “new normal” and clearly communicate the changes that may impact your child. Invite an honest discussion and make sure your child has the chance to express his or her fears, feelings and frustration.
• Also know that your child(ren) will likely wish you and your spouse were still together, but as time goes by, often they will accept the divorce.

One final rule?

Always try to negotiate the custody of your child with his or her best interests as the sole intention. One of the worst experiences children can suffer in a divorce is when they realize a parent has ulterior motives or they feel “caught in the middle” between parents fighting about them in a drawn-out custody battle.