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December 3, 2007

Custody Labels or Parenting Plan?

Custody refers to a legal arrangement, while shared parenting responsibilities describe the actual activity between the adults. Often shared parenting, also called co-parenting, is interpreted to mean that parents are able to raise their children together, even if the parents are no longer marital partners. Cooperative and communicative parenting is optimal, but co-parenting can be effectively accomplished in less optimal circumstances, as long as parents can put aside their differences and focus on what the children need.

There are four types of post-divorce relationships between spouses: perfect pals, cooperative colleagues, angry associates and fiery foes (as a divorced father myself, I'd consider our son's mother and I in-between the first two!).

Two of the four types can create an effective co-parenting alliance. Bottom-line: successful co-parents communicate and negotiate with each other about the children, respect each other as parents despite their differences, put past issues aside and concentrate on the child, share control with each other and adopt a hands-off attitude toward how the other person parents, tolerate differences in child rearing practices and values without labeling them as harmful to the child and value what the other offers as a parent.

In those cases where our firm is contacted, then retained to create our client's agreement, I provide for "liberal and reasonable" access in between structured visitation so long as the parties can work together and the children are of an age where the flexibility works well. There are also all kinds of issues that can be written in an agreement. For example, if you feel that your time with the children is often reduced when they are sick, compensatory time will be scheduled if it is not too disruptive. Similarly, if your spouse hires a babysitter to watch the children when you would normally be available, you can specify that you get first right of refusal for extra time (most judges require a three or four hour period before this clause would kick-in).

For parents who want to share their children's time equally, there are many possible schedules. Some that are used frequently are every other week, every two weeks, Monday morning through Thursday morning and Thursday afternoon through Monday morning, Wednesday morning through Saturday morning and Saturday morning through Wednesday morning and September through June for summers for parents who live in different states.

The benefits of shared parenting accrue to both parents, as well as children. Some of the most salient advantages are the nonresidential parent is less likely to feel like a visitor and money-making machine; both parents feel good about their ability to work together for their children; the child has ongoing contact with both parents and both parents get more support for parenting. One of the best advantages when it all works out is how both parents get more support for parenting. When one needs help in a pinch, the other parent is more likely to step in and assist.

June 7, 2007

6 Things to Do Before You Even Think About Initiating a Custody Case

There are six things you must do before you act on any thoughts you have about filing for custody. It's important to be certain that you have done the things you need to do to feel good about your decisions. Here are the top six things:

  1. Talk to an attorney before you do anything. Even if you don't end-up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information you can before doing the same relating to the custody of your children.

  2. Understand the Massachusetts standard as it relates to children (and custody-related issues). Here, we follow the "best interest of the children" approach. It is always best to work out an agreement with the other parent; then, child custody is simple. But if you cannot work out an agreement, the government takes over the role of deciding what is best for the children.

  3. Create a proposed "Parenting Plan." A vague, flexible arrangement will only create more trips to court later on. Insert all the issues to be addressed. Include joint and individual responsibilities, regular parenting schedules and vacation times each year.

  4. Beware of the Parental Alienation Syndrome. This theory that describes brainwashing by one parent to make the children hate the other parent is toxic. Evidence of this is often enough to convince the judge that one parent is unfit to be a sole custodian - based on this alone!

  5. If you end up in court, be briefed and follow the Rules of Procedure and discovery. Now is not the time to show your inability to follow any system that includes structure and predictability.

  6. If a GAL (Guardian ad litem) is involved, present your case in the best light possible. Find pictures of you with the children (showing how they're happy) and get letters of reference of others who have seen you interact with the children.

April 3, 2007

Who Gets the Children?

This past weekend, a client asked me what I thought his chances were in winning custody of the couple's two children. This common question brings up two important points worth addressing:

First off, there is a rebuttable presumption that some form of shared custody is in a child's best interest. This means that unless one parent or the court can prove the contrary, involvement from both parents is the starting point for which the court shall fashion an order relating to the children.

Secondly, in an effort to de-escalate the importance parents put on both winning and losing - along with the distinctions between the terms custody and visitation - the Massachusetts Probate and Family Court has slowly begun replacing the traditional custody language with that of a parenting plan. This parenting "plan" really ends-up being a contract between the parents.

This plan outlines the specific weekly parenting schedule, holiday and vacation schedule, shared transportation (pick-up and drop-off) responsibilities and both the individual and joint duties of both the children and parents, etc.

I am a big fan of detailed and organized plans. Whenever new clients come to see us, we make every effort to review 200+ must-have clauses that may be included in a parenting plan. While many clients get impatient, want to push their divorce through the system, we always slow the process down when it comes to the parenting plan. After all, thorough and detailed work now will prevent problems later.

To conclude, while lawyers and divorce litigants sometimes speak of a parent's "right" to custody of children, this is misleading. It is more accurate to refer to one parent's "interests" in custody rather than their "rights." The focus in a custody dispute between parents is not on their personal rights but on the welfare of the children.

I'll be in our Southborough/Marlboro office much of this week; call me to discuss how I might be able to help you outline the terms of your agreement - (508) 480-8770.

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