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In this article, we explain some basics you should know about child custody, including: How to Get Started, Mediation, Temporary Order for Parenting Time and Emergency Orders, Types of Custody, Stipulated or Proposed Child Custody Agreements, What factors does the court consider when deciding custody and parenting time?, and Parenting Plan Modifications.

While child custody laws vary from state to state, by and large, all jurisdictions seek to resolve the same issues, and go about it in roughly the same way. Having an attorney that practices family law in your jurisdiction can help you complete or file the appropriate child custody forms and reach a child custody agreement.  

In this article, we explain some basics you should know about child custody, including:

  • How to Get Started
  • Mediation
  • Temporary Order for Parenting Time and Emergency Orders
  • Types of Custody  
  • Stipulated or Proposed Child Custody Agreements  
  • What factors does the court consider when deciding custody and parenting time?
  • Parenting Plan Modifications

How to Get Started

In most states, custody or parenting time for a child can be adjudicated by the court in conjunction with any legal action that affects the family. Commonly it will be decided as part of a divorce or legal separation, but it is also possible to resolve custody and parenting time by itself. People getting a divorce will file a divorce petition, also called a petition for dissolution of marriage, and can request that custody and parenting be resolved within that action.  

Circumstances change, and it is possible to move between states and maintain your custody agreement. The Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by every state except Massachusetts. The UCCJEA provides standards that states must follow when deciding child custody and makes it easier to have a custody agreement transferred from one state to another when parties relocate.  

Mediation

When custody and parenting time are contested, it is common for the court will require that the parties go to mediation. This mediation tends to focus on getting parents to agree to parenting time and custody. Often the mediator will interview the children or appoint a Guardian Ad Litem (an attorney who represents the best interests of the children) in order to determine what the children want, and what is best for them.

If the parties can come to any agreements during mediation, those agreements should be put into written form to be stipulated to by the parties, so that the court can approve those agreements and deal with any remaining issues. If mediation is insufficient to resolve disagreements between the parties, they can continue to advocate for what they believe should happen to the court.  

Temporary Order for Parenting Time

If parents are having issues agreeing on a parenting plan while the divorce or family case is ongoing, they can petition the court for a temporary schedule in order to have something in place until a final judgement is entered.  

In the states that allow it, emergency orders can be used to modify custody or parenting time in the case of an emergency. If there is an emergency regarding the child, such as abuse or violence occurring in the home, the parent seeking an emergency order may have an opportunity to provide evidence regarding the emergency to a judge in order to get a temporary emergency order issued as fast as possible.  

Types of Custody  

Custody is more than just how much parenting time you have. Here are some of the terms used to describe custody.

Physical Custody: physical custody is how much parenting time each parent has, or where the child “physically” is on any given day. This should be laid out in a parenting schedule.  

Legal Custody: legal custody generally refers to the responsibility of a parent to make decisions regarding the child’s longer-term needs and activities, such as non-emergency health care, education and school activities, childcare providers, non-school activities, religious decisions, and any other area that might relate to the custody of the child.    

Sole Custody: if a parent gets sole custody, it generally means that the parent has majority or all parenting time and is the only one with decision making authority regarding the child’s needs and activities. It is most common for one party to get sole custody when the other parent is either not willing to take on parenting responsibilities or is unfit to do so.  

Joint Custody: joint custody is when the parents share parenting responsibilities. Joint physical custody is when parents split parenting time, and joint legal custody is when the parents share decision making authority over the children’s long-term needs and activities.    

Primary Custody: Generally, the parent with more overnight parenting days within a year has primary custody (primary physical custody) regardless of whether legal custody is jointly split between the parties or not. It is most common for the parent with primary custody to responsible for the children on school days, and for the children to go to school in the district nearest the primary custodian.  

Stipulated or Proposed Child Custody Agreements  

Child custody agreements (also called parenting plans or allocation of parental responsibilities) will be the document that decides how the parents will split custody of the children and how they plan to care for the children. If at any point during the case parties are able to agree upon a child custody plan, they can stipulate to that agreement, and have it approved by the court. If parties continue to disagree, it will become necessary for the court to determine what parenting plan would be appropriate.  

Child custody agreements are supposed cover as much as possible, and are likely to include a plan for the following issues:

Parenting Time (Physical Custody)

How parenting time will be divided is up to the parents and the court (if parents are unable to agree). Parenting plans should ultimately be what is in the best interests of the children. The parenting schedule will likely dictate which days each parent is allowed physical custody of the children.  

If the parents live in close proximity, or the same school district, joint custody and shared parenting time is much easier accommodate. Parents can exercise joint legal custody and split parenting time more evenly, such as one week for parent A, then one week for parent B, and so forth.  

If the parents are not so near to one another, the parent who gets majority of parenting time/custody will likely be the one responsible for enrolling the child in the school district that they reside in. If this is the case, it will likely be in the child’s best interest that the parent with primary custody have majority or all parenting time during school days/nights in order to accommodate the child’s school schedule. It is common for the other parent to get weekend parenting time (such as every other weekend) or increased parenting time during summers.  

Parenting plans generally lay out a holiday schedule. While parties can agree between themselves, a holiday schedule will make clear who will get parenting time on any given holiday. Summers are also often treated differently than school year parenting time.  

It is also common for parenting plans to include how much vacation or special event time outside the normal parenting schedule a parent can use to do something with the children, and how much notice needs to be provided to the other parent to do so. Again, parents can agree to make modifications and accommodate one another, but having the rules written into the agreement can help avoid potential future conflict.  

Decision Making Authority (Legal Custody)

Custody is not just about how much parenting time each parent gets, it is largely about who has decision making authority over the child’s needs and activities. Parents can have joint decision-making authority, such that they need to agree upon the issue being decided. Alternatively, they can decide which parent will have sole decision-making authority for a given issue type. For example, they could have joint decision-making authority over non-school activities such as sports, but parent A could be solely responsible for decisions regarding childcare providers.  

Common areas requiring decision-making authority include: Non-emergency health care, education and school activities, childcare providers, non-school activities, religious decisions, and any other area that might relate to the long-term decisions of the child’s upbringing.  

Health care decisions could include medical, dental, or psychological needs of the child. Education decisions could include where the child goes to school, tutoring, or extracurricular activities. Non-school activities could include sports, programs, or other activities, especially if they interfere with one parent’s parenting time. Religious decisions might be made as part of the parenting plan to formalize in writing what religion, if any, the child will be raised in.  

Child Care and Transportation

Regardless of who has decision making authority over childcare providers, parents can decide in the parenting plan how they will go about getting childcare. It is common for parenting plans to include a “right of first refusal.” Which means if one parent, during their parenting time, needs to hire a babysitter or childcare provider, they will first have to offer the parenting time to the other parent. Parties can also include relatives or other family members that should have priority over paid childcare.  

The parenting plan can establish which childcare provider the parties have chosen, and how the parents will split the cost of that childcare.  

When one parent’s parenting time is up, and the other parent’s time begins, it is necessary to transport the child. The parenting plan should explain how transportation responsibilities will be divided by the parties. Who is responsible for drop offs/picks ups? At what time does the child need to be dropped off/picked up by? Where is the child to be picked up or dropped off?  

While circumstances change, and parents often agree to minor tweaks to accommodate schedules of the children or parents. Having a clear plan in place helps avoid conflict and can be a reference if there is a dispute.  

Health Care and Taxes

Regardless of who has decision-making authority for health care, parenting plans should include how the child’s health care is paid. Often, health insurance for the child is part of one parent’s health insurance through work, and that parent can remain responsible for continuation of that health insurance. A parenting plan can also identify which doctor, dentist, etc. that the child should be taken to if necessary.  

Taxes. Parents will want to know when they can claim a child as a dependent (for an exemption) for their tax returns. Generally, the custodial parent (whoever the child spent more nights with over the course of the year) would be the one eligible to claim the child. However, parties may agree in the parenting plan to let the non-custodial parent claim the child on some years. For example, odd years for Spouse A and Even years for Spouse B. IRS form 8332 can be used for this purpose, and the parties may have to consult a tax professional to make sure they can effectuate the agreement while complying with rules for their state.      

Child Support

Child support is standardized and predictable. Every state has guidelines for how much child support should be an under what conditions parties may deviate from guideline support. Consider trying a child support calculator for the state you live in for an estimate of what your child support payments would be. A parenting plan may include how much a parent is required to pay for child support. Sometimes parties can agree upon what they would like child support to be, provided that it is approved by the court.  

Dispute Resolution

Parenting plans are supposed to set clear instructions so that parents have less to fight about. However, no matter how good the parenting plan is, issues pop up, and things change. If there is an issue that comes up, a parenting plan can include a section about how the parties will deal with that issue in order to resolve it without further intervention from the court. In a dispute resolution section, parents can decide to let one parent decide the issue. They could also decide to appoint a third-party that the parents will allow to help them resolve the issue, or act as a “tie breaker.” Parents should think of what works best for them and try and implement it into the parenting plan.

What factors does the court consider when deciding custody and parenting time?

Each state has different factors it will consider when deciding custody and parenting time, but several factors are almost always most important. The court will often consider the following with the most importance:

  1. The agreements or wishes of the parents
  1. The best interests of the children (which may be communicated through a guardian ad litem). The best interests of the child encompasses almost all elements of the child’s life including what they want, stability, their relationships with friends and family, academics, etc.  
  1. The status quo – how much time was spent with each parent in the time preceding judgement  

Parenting Plan Modifications

Things change. People move. Depending on the state, modification to custody agreements is generally allowed when there is a significant change of circumstance. Getting a modification is commonly done by filing a petition for modification into the existing family law case in which there was a judgement entered for the custody agreement. The party seeking the modification will likely need to show what change in circumstance there is, and why it is in the best interest of the child(ren) that modification be made. It is generally easier to get a modification after significant time has elapsed (2 years for some states) from the initial judgement or most recent modification, as courts are more reluctant to modify an agreement recently reached or entered.  

Having an attorney can help you deal with family law issues as efficiently and effectively as possible. If you would like the help of an attorney with your divorce, or to help you get more parenting time with your children. Please contact O’Flaherty for a consultation.  

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