Family Matters

Child Custody – What is the Best Interest of the Child?

You are considering separating from your spouse and/or your significant other, but down the hall there is a five year old child that loves both of you. What happens to him or her? The polestar in any custody litigation is “what is the best interest of the child?” So, if you are either a mom or a dad and are considering breaking up the child’s other parent, you need to first think what is in that child’s true best interest. Most of the time, if you are entirely honest, your answer will be that the child needs both of you to help continue to raise him or her. There may be exceptions to that situation, if one of the parents is an alcoholic or drug addict, or is physically or mentally abusive, but in 90% of the situations, both parents’ continuing involvement with the child is truly what is in the child’s best interests.

How do you determine a custody schedule for the child? First off, look at what roles both parents play with regard to the caretaking and development of the child. The courts would call that the status quo. Is one parent more involved in the daily rearing of the child while the other parent is at work or are both parents at work? At night are both parents equally involved with the childrearing functions and tasks or is one parent always putting the child to bed? One of the most significant sociological changes over the last 20 years has been the increased involvement by fathers in the raising and rearing of their children. What once used to be a predominantly female task of raising the children, has rapidly grown to be a much more balanced and equalized task of childrearing. If that is in fact the case in your household, then upon a separation of the two parents, why would all of a sudden a schedule be designed that creates significantly more time with one parent than the other.

The courts and the legislatures have come up with terms, depending upon which state you live in that are used such as primary physical custody, shared physical custody, partial physical custody, visitation, parent of primary residence and parent of alternate residence.

When it comes to devising a schedule, there is no one size fits all, as everybody has different needs and also different working schedules which will impact or affect a custodial schedule. For example, if Mom is a nurse at a hospital and works second shift from 4:00 p.m. to 11:00 p.m., obviously she cannot be available for the children when they come home from school and provide them dinner on the nights that she is working. Likewise, if Dad does a lot of traveling away from the area, a schedule that has alternate weeks of custody for the child with Dad won’t work if it is during one of Dad’s travel weeks. Clearly, the message that needs to be a starting point for any custody schedule is practicality. The schedule has to be practical based upon the respective parents’ work schedules.

The second point in developing a schedule is that children take time to adjust to each parent’s household. A schedule that has the child going back and forth every other day between two different households is surely not in the child’s best interest. A child is not a ping pong ball and is not going to be able to rapidly adjust to so many changes.

Are there rules of thumb? Attorneys are always asked what is a standard schedule? Our response would be to prepare a schedule on a two-week basis. This way, each parent would have one weekend with the child or children. The weekend usually starts either at the end of school on Friday or at the end of work on Friday and goes to Sunday evening when the child is returned or through to Monday morning when the child goes back to school directly. Next you focus on the remaining four days during the week – Monday through Thursday. In most instances, dad is going to have at least one of those four overnights if the schedule is going to be non-equal. If it is going to be an equally shared schedule, then often those four days are divided equally as well.

Attorneys are often asked since one of the parents never did the child’s homework or rarely helped the child get dressed in the morning how can the court allow that parent have an equal amount of time with the child? In reality, this may be a factor but as the child gets older and is thought to be more self-responsible the courts will have less concern about the child’s ability to do their homework on their own or get dressed or bathed on their own. The more dependent a child is on one of the two parents, this may affect the custodial schedule in terms of the number of overnights that the child is with both parents, but psychological studies have shown that children are better adjusted after their parents have separated if they continue to have regular contact with both parents.

Another common question that comes up is one parent almost never took the child to the doctor or dentist as that task was always accomplished by only the mother. Why should dad who was never involved all of a sudden now get to make decisions affecting the child’s health and welfare? In reality, both parents are always entitled to information and/or decision-making with regard to their child’s medical issues. When they are separated, the child continues to have medical issues and both parents need to participate in this important activity and important decision-making. The courts hope that the parents can move forward together in these important decisions, but if not, then either the court will make decisions as to medical treatments or the court will determine that one of the parents will have legal custody of the child in order to make the decisions if they are unable to do so jointly.

Raising your children after a separation is probably even harder than doing it while you are in an intact family. However, attorneys who are experienced at handling custody cases through the courts can help you through this process and coming to compromises and resolution or, if necessary, litigation through the court.