At first, the very concept of negotiating custody might seem alien. When you were a family unit, you both had custody—although you probably never thought of it that way. You were just your children's parents, nothing more, nothing less. Together, you decided where they went to school, what religion they practiced, and whether they would go through the ritual of getting braces or attending camp. It was natural in your family—as in most intact families—for you and your spouse to discuss these things and come to an agreement about what was best.
Once you and your spouse no longer live under the same roof, things will change. Now, the two of you will have to decide just how these decisions are made. Will one parent have the final say? What role will the other parent—the one no longer living with the children most of the time—assume? Will one parent feel overburdened with responsibility? Will the other parent feel cut off from his or her children, painfully disenfranchised from their lives? Or will the children alternate between the two of you, inhabiting different homes and bedrooms from one part of the week to the next? Do you think you can share the task of child-rearing, 50-50, even as you end your marital bond?
You must consider these questions as soon as possible. If you can put your personal animosity aside for the moment, you should be able to arrive at a practical, workable custody arrangement. If you can't (assuming you can afford it), court battles—perhaps lasting until your children are emancipated—might ensue.
Custody Is Not Ownership
“Custody” is an unfortunate term that can make the noncustodial parent feel diminished as a parent. The terms time-sharing and co-parenting have become popular with psychologists working in the field of divorce and with many divorced people. The new phraseology emphasizes that both parents are still parents—a crucial concept for making life work after the cataclysm of divorce.
Any negotiation, of course, is based on the assumption that you understand precisely what custody is—and what it is not. So let's begin with some definitions:
- Legal custody. The legal right and responsibility to make decisions for a child.
- Physical custody. Where a child will live.
- Sole custody. One parent has the right to make all major decisions regarding the children, and the children reside primarily with that parent. The parent who does not have sole custody is called the “noncustodial parent,” and—barring abuse, neglect, or abandonment—will have visitation rights, or “parenting time” with the child.
- Joint custody. Joint physical custody means the children reside with each parent for an equal length of time. Joint legal custody means the children reside primarily with one parent, but both parents have an equal right to make major decisions about the children's lives.
Custody does not mean ownership. Children cannot be owned like a car or a house. What custody does mean is that one (or both) parents have the final say in the decision-making for major issues in child rearing (legal custody). Custody usually also determines with whom the children primarily reside (physical custody).
Although traditional custody guidelines have historically suggested that children live with the noncustodial parent about 20 percent of the time, an increasing trend toward shared or joint custody and more equitable amounts of time means that children will often spend 30 percent to 50 percent of their time with the noncustodial parent.
Understanding Your State's Custody Preference
The advantage of negotiating a divorce settlement when you have children goes beyond saving time, money, and aggravation. It enables you to tailor your living and custody arrangements to your own children's needs without the cookie-cutter results most courts would impose. This fact alone is worth temporarily putting aside your angry or hurt feelings and trying to reach a settlement.
How to begin thinking about the emotional issue of who gets custody? Even if you plan to settle your divorce, it might help to be aware of the form of custody your state prefers or presumes.
For example, in a state that has a presumption of sole custody, if you are not able to come to an agreement with your spouse on custody, and your case goes to court, you will have to prove why joint legal—or maybe even joint physical—custody would be in the best interests of your child, given your family's circumstances. To repeat, this does not mean you can't agree to joint legal or physical custody in your own agreement, just that you'll have the burden of proof if you try your case in this situation. In a state that has a presumption of some form of joint custody, on the other hand, if you go before a judge, he or she is likely to order a joint custody arrangement unless you prove it would not work for your family.
It's useful to know your state's preference for custody. Barring any mitigating circumstances, judges will generally follow their state's presumption. So, if you are on the wrong side of the presumption, you might be better off negotiating custody based on what you both feel works best.
Foremost in your mind, as you navigate your way through this important decision, should be how you believe your own children—with their individual temperaments, personalities, fears, and needs—will thrive under a particular custodial arrangement. In particular, if you believe you cannot cooperate on a regular basis with your ex-spouse, you should not consider joint custody, no matter what the preference of your state.