Legal custody refers to the parent’s right to make major decisions on behalf of the children and is distinct from physical custody, which determines where the children spend their time.
Joint legal custody means that both parents, by law, will have decision-making responsibility in major child-related issues such as education, medical treatment, religious training, recreational activities and the like. Joint legal custody is the favored designation in Massachusetts and across the country— the underlying concept being that children are entitled to the active involvement of both parents in a post-divorce context. Indeed, this is the presumption at the level of temporary orders unless the parent opposing it can show solid reasons why it is not appropriate. Symbolically, the designation “joint legal custody” seems to acknowledge for the noncustodial parent his or her continuing rights and responsibilities with respect to the children.
Practically, there is some evidence that noncustodial parents who are joint legal custodians tend to remain more involved in the development of their children and tend to meet child support obligations with more consistency. Again, joint legal custody does not imply that the children spend 50 percent of the time with each parent but rather that each parent must consult with the other one about major issues involving the children.
In general, joint legal custody is awarded to (or agreed to by) both parents, and physical custody remains with one parent, with whom the children primarily reside. Historically, it has been the mother who has been the primary caretaker. While the past several years have seen an increase in father’s caretaking, it is still true that in the majority of situations, physical custody, particularly for young children, continues to remain with the mother.
The standard, however, will always fall to what is in the best interest of the child(ren). Under this type of arrangement—joint legal custody with physical custody in one parent—the noncustodial parent typically has a set “visitation” schedule with the children. The most common schedule is every other weekend, alternate holidays, and as much time as is feasible during the summer school vacation with the noncustodial parent.
“Visitation” has increasingly become a term offensive to both parents, and more and more attorneys are attempting to characterize the concept as “father’s access schedule” or “mother’s time with the children.” Frequently, the term “parenting schedule” is used to symbolize the co-parenting of the parties or parenting time during a scheduled visit.
While the pattern I have sketched above (joint legal custody with physical custody to the mother and a fairly equal sharing of children during nonschool time) is common, it is not the only pattern. Sole custody to one parent with limited visitation for the other is an option. Another option that is becoming more popular is shared physical custody. Under this arrangement, the children have fairly equal periods of residing with each parent, such as three days at one home, four days at another or alternating weeks.
Is still widely debated whether a shared custody arrangement is really in the best interest of the children. Proponents of this approach focus on the benefit to the children of having equal access to each parent. On the other hand, critics argue that children need a “home base” and that transition between homes every few days or weeks causes too much disruption in the children’s lives.
When proposing shared physical custody, it is especially important to consider what arrangements will be necessary for day care, school and social activities of your children, and to have a plan for meeting those needs, especially if you have not been the primary caregiver. Courts generally attempt to keep children in their current home, school and neighborhood to minimize the impact a divorce inevitably has on them. Shared physical custody, while becoming increasingly more popular, requires very careful planning and extraordinary good will and cooperation on the part of both parents to succeed.
Every divorce agreement or judgment in a divorce involving children will contain a parenting plan that addresses the following: the child’s education, the child’s healthcare, procedures for resolving disputes regarding child-rearing decisions, the parenting schedule, including holiday, nonschool and visitation schedules if applicable.
Custody (or child-related) issues are the areas in divorce law that are never written in stone and are modifiable based on a change of circumstances and the “best interests” of the child. Custody is also the area in which the parents themselves are most qualified to work out schedules and sharing arrangements because lawyers and judges, as third parties to the family, really cannot tell you what will work best for you and your children.
Custody, frankly, is also the area in which lawyers and judges most loathe to see disputes. A contested legal battle for the custody of children unfortunately and invariably tends to bring out the worst in everyone and wreaks havoc not only with the parents, but with the children themselves. While litigation is sometimes unavoidable, my own view is that every alternative (including mediation and joint counseling) should be explored before litigating a custody issue.
There is an excellent book dealing with issues of children in divorce, Surviving the Breakup: How Children and Parents Cope with Divorce, by Judith S. Wallerstein and Joan B. Kelly. It is now available in paperback and in local libraries. It provides useful information on how children within particular age groups respond to divorce.
By: Julie A. Dialessi-Lafley, Esq.