If you are separating from your spouse, you might assume that child custody will be worked out once the divorce is finalized. However, your child cannot wait that long to know where they will be living, who will be the caretaker, and which parent is responsible for various tasks. It is also better for you and your ex to work out as many of these details as possible as soon as feasible. Creating a separation agreement will leave you less to do if and when the time comes to finalize your divorce.
Understanding How Child Custody Works
Decades ago, the most common arrangement was that the child would live with one parent (usually the mother) most of the time and visit the other parent (usually the father) every other weekend and perhaps for a week or two during the summer. Times have changed, however, and both parents receive equal amounts of time with their child in most cases today.
This is not possible in all cases, of course. In some cases, one parent will still retain sole or primary custody, and the child might or might not visit with the non-custodial parent. But the courts have overwhelmingly recognized that children do best when they can have a good relationship and significant time with each loving parent.
Joint Physical Custody
Joint physical custody means that the child will live with both parents. Custody schedules vary depending on the situation. For parents who live locally to one another and who have flexibility in the way they spend their time, a child might spend one week with one parent and the next week with the other parent, alternating every week.
Or they might have a 5-2-2-5 schedule, which allows for alternating weekends. Both parents need to discuss what would work best. In some situations (when a parent works long hours, for example, or when one lives quite a distance from the other), the child might spend significantly more time with one parent than with the other even though they share joint physical custody.
Joint Legal Custody
Joint legal custody means that the parents will decide where they will go to school, which religion they will be raised with, whether they will have optional medical procedures done, etc. The parents might sit down, make all these decisions together, or handle medical decisions while others handle educational decisions.
Sole Custody
Sole legal or physical custody means that one parent is responsible for making decisions, and having the child live with them. The other parent will usually get visitation rights. In some circumstances, the non-custodial parent will have only supervised visitation or, in specific severe cases, no visitation at all.
The Major Decisions of a Separation Agreement
When you put together your separation agreement, you and your ex will need to make some decisions together. One of the most significant decisions will be who the child will live with. The answer might be one or the other, or it might be that they will go back and forth between both parental homes. You will also need to decide which parent will remain in the marital home or if you will both move out of it.
If you own the house, you might need to sell it and split any proceeds. Or maybe one will buy out the other. Some couples decide to settle on a relatively new concept called “birdnesting.” This is where the child lives in the marital home, and the parents take turns staying with the child. When it is a parent’s time not to be in the house, they might have an apartment that they also share on a rotating basis with the other parent.
For example, dad might live in the marital home for one week while mom lives in a small apartment a few miles away, then at the end of that week, they will switch places. If you get along well with your ex and trust each other, this might be an option that works for both of you. Another big decision that needs to be made is where the child will go to school. If he or she has already been in school, it is best to keep them there, if possible.
If both parents need to move out of the school district or can no longer afford private school tuition after the separation agreement is finalized, though, you will need to make this decision for your child. You will need to decide where the child will spend the holidays. If one parent celebrates Christmas and the other celebrates Hanukkah, that decision will primarily be made for you. If you both celebrate the same winter holidays, however, you will need to work it out.
In many families, the children will spend Thanksgiving with one parent and Christmas with the other; then they will switch for the following year. You can do the same with Halloween, Easter, Passover, and the child’s birthday. It will help if you discuss any travel plans that include the child. Are you okay with your ex taking your child out of the country on vacation? Do you each want to take the child for up to two weeks on a trip each year?
Work out these details, keeping in mind that you can tweak the decisions later. Nothing is going to be set in stone, mainly if your children are young. What you feel comfortable with for a 3-year-old is not the same thing you will feel satisfied with for a 13-year-old. Once the separation agreement is finalized, working with your ex (and learning how) to best care for your children will benefit the whole family.
You will need to keep communication lines open until your child is an adult, so getting in that practice now is an excellent way to set expectations and achieve goals together. Contact Family Law Legal Group if you need help navigating the process.