Kelly A. Frawley and Emily S. Pollock Updated: August 15, 2018
When parents of minor children divorce, it is natural for them to be most concerned about the well-being of their children. With careful planning, preferably in conjunction with your spouse, you and your soon-to-be ex spouse can maintain a loving, comforting environment where your children can feel safe and happy if you understand the basics of child custody.
Understanding the basics of custody arrangements. Here’s a brief rundown:
Physical Child Custody vs. Legal Child Custody
Custody agreements specify arrangements for both physical custody — where the child lives — and legal custody — who makes major decisions on behalf of the child.
The traditional model for physical custody is that the child primarily lives with one parent (the primary custodian) while the other parent has parenting time (historically known as visitation). Increasingly, parents are creating parenting arrangements more akin to 50/50 physical custody, with children spending equal, or virtually equal, time at each parent’s home.
Where parents are willing to talk through issues and make major decisions together, legal custody can be a 50/50 proposition as well and parties can agree to make major decisions relating to the child jointly. If parents are unwilling to agree to make decisions jointly and a court is asked to decide who will have final decision-making authority, the court may award legal custody to one parent, or it may break decision-making into zones or spheres — e.g., mom makes education decisions while dad makes medical decisions. Minor day-to-day decisions generally are made by the parent who is with the child at the time — e.g., bedtime, food choices, and homework supervision procedures.
As your divorce is pending, you likely will have the opportunity to work out an interim parenting schedule. This temporary schedule may help you assess a shifting balance of parenting responsibilities. It can also shed light on the ability of each parent to follow through with what they have requested: If a spouse is not using his allocated time during this trial period, for example, then the court is not likely to grant that schedule in a final judgment.
In negotiating the custody schedule for your children, think of it less as a zero-sum situation designed to put more “overnights” in your column, and focus more on what makes sense for your post-divorce family. Conduct an honest assessment of your family dynamic and strive to bring the best of your spouse and you into the arrangement. If one parent has played a dominant role in the children’s upbringing due to the other spouse’s career demands, it may not be realistic for the career-focused parent to suddenly commit to equal time.
Similarly, because a parent in an intact marriage was less focused on specific parenting tasks, that does not mean that he or she will be unable to assume those responsibilities after divorce. Sometimes heightened emotions during the divorce process push parents toward overestimating what they have to give while underestimating the positive contributions of the other parent. The best possible outcome is for the children to have stability and to have both parents be committed and confident during their time with the children.
Child Custody Influences Child Support
Where one parent is the primary custodial parent, he or she will receive child support from the non-primary custodial parent. Where the parents have equal, or virtually equal, amounts of parenting time, the higher-earning parent generally pays child support in an amount agreed upon by the parties or calculated by the court using state-specified criteria. Typically, child support takes into account the income and expenses of both parents as well as the child’s needs.
Spousal support (commonly known as alimony) also may be affected by a custody agreement — e.g., if the higher-earning parent wants the child to continue living near where the marital residence had been but the cost of living there is prohibitive to the custodial parent, then the high earner may decide to offer additional financial support in the form of alimony in order to facilitate easy transfers between the parents’ homes.
Court Intervention: If You Can’t Agree on Custody
Courts prefer that couples work out as many details of their custody agreement as possible, as parties are more likely to live by an agreement that they have had a hand in creating and it minimizes the hostility that can result when parties litigate custody. At times, however, it may become necessary for the court to become involved — when parents cannot agree who will make the major decisions, for example, or when the court decides that the contentious nature of the case merits appointing a neutral attorney to represent the child.
The court also may intervene if one or both parents request a modification of the custody agreement based on some changed circumstance since the agreement was executed. Maybe one parent consistently is not getting the children to school on time or regularly fails to show up for parenting time. In such event, if the court determines that a modification is appropriate, promoting the children’s best interests will be the primary focus.
Commit to Creating a Peaceful, Loving Home After Divorce
As you work through the divorce and custody process, it is critical that you protect your children’s emotional well-being. It is best to work out divorce and custody issues with your spouse away from the children — never in front of them or within their earshot — and to maintain a united front. Make sure you are managing your own emotions, getting whatever level of counseling or support you may need so that you can provide your children with stability and the security of knowing that you are committed to creating a peaceful, supportive, loving home.
Emily S. Pollock has been practicing exclusively as a matrimonial and family law attorney for over a decade. Her practice focuses on disputes involving divorce, property division, custody, parenting time, child and spousal support, and high-net-worth divorce. For over a decade, Kelly Fawley‘s practice has focused on matrimonial and family law, where she handles complex financial and custodial matters in disputes involving divorce, equitable distribution, custody, child and spousal support, paternity, and other areas of matrimonial and family law before New York State trial courts.