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5 Common Physical Custody Mistakes

When it comes to a change in family relationships and new custodial arrangements, the transition and implementation can get bitter and divisive. Some of this is a natural byproduct of change, but other issues arise because the underlying relationships were negative already. To lessen the impact of these factors, parents and other custodians need to be careful to avoid some critical mistakes that add to the challenge.

1. Having a Custodial Agreement

Generally, custody and parenting time become an issue because the relationship between the adults has ended. However, in contemplating a new normal, people don’t always remember that they no longer live in the same house and have ready access to one another for decision-making and arrangements for the children. This leads some people to think of custody as a fluid thing, especially if they live close and last-minute changes appear doable. Eventually there will be some sort of scheduling challenge that will escalate into a conflict, even with the most agreeable parents. Having an explicit agreement in writing helps keep the interactions and arrangements simple by setting up a default. In the event of a possible deviation from the agreement, if the parties can’t agree to a different arrangement, then this default can be the uncontroversial fallback. For a custody agreement to be effective, it must

  • Be in writing so there is no dispute as to the terms of the agreement
  • Be explicit and clear so there are no ambiguities; and 
  • Provide for resolution in the event of future conflict. 

These elements can remove the long-term conflict that can arise from ambiguity. For these types of agreements, it is always better to be overinclusive than underinclusive on all aspects of custodial time.

2. Follow the Written Schedule and Only Make Changes in Writing

It may seem like an unnecessary hassle, but the written schedule is only useful if it is actually used. The parties should be clear that the schedule is the default. If someone does want to make a change, and everyone agrees, there’s nothing wrong with making changes in the best interest of the children. For minor changes, like a variation for one weekend only, then it is okay to deviate if the parties can have the discussion and reach an agreement. However, make sure to memorialize the deviation in writing emails is sufficient so that there is a clear record to help in case someone forgets what was agreed to. The more substantive the changes, the more important it is to be explicit in writing. In addition, it is important to create a record of a parent who deviates without consent (e.g. a parent is consistently late).  The record will be helpful if a parent needs to go to court to modify the arrangement, and, on the flip side, an adequate record will be a good defense if an accusation is made which is not true.

3. Be Reasonable

It may seem obvious, and it may seem simple, but sometimes being reasonable is the hardest part about co-parenting. When the other parent makes a request, the Golden Rule should govern any response. It’s both courteous and in the better interest of the children to be flexible if at all possible. This helps foster a less acrimonious, if not amicable, co-parenting relationship, and it allows for reciprocation. Refusing to shift for any reason is the kind of intransigence that leads to problems, especially as the children age and their needs change. 

4. Seek a Schedule That Effectively Addresses and Alleviates Concerns

When it comes to a custodial schedule, fairness and convenience tend to be top of mind. However, some parents forget that the beneficiaries of this focus should be the children, not the adults. Sometimes parents will insist on a schedule and not move from it because they think it is fair to them even if it isn’t the best solution for the children. For example, schedules may be proposed that undermine the developmental needs of the child. Generally, younger children are better developmentally served with more frequent contact with each parent, thus a week on/off arrangement may be less beneficial than a 2/2/3 schedule in an equal sharing arrangement. If a child is neuro-atypical, they may need a more structured arrangement, which might call for an inconvenient schedule for the parents but helps maintain stability and foster development for the child. 

5. Real World Solutions Work Best

On a calendar, custodial schedules may seem to work, but the reality can often be different. For example, an exchange might be scheduled in the mid-afternoon when the child finishes school, but in reality, the receiving parent may have work obligations that keep them from picking the child up. Thinking through the practicalities and spelling them out in the agreement will help maintain a stable environment for the children. An agreement should take into account work schedules, holidays, extra-curricular activities and other issues that can interrupt an arrangement that seems reasonable on paper. 

All of these potential pitfalls take careful consideration and planning before they become a problem. While most parents do their best, the transition to a co-parenting situation involves many moving parts, and it isn’t always obvious where the problems can lie. Consultation with an experienced family law attorney can help identify the overlooked issues that might be explosive if they aren’t addressed. If you are in need of creating or modifying a custodial arrangement, contact us for a consultation.

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