Smart Parenting During and After Divorce: Understanding Custody and Visitation in Relation to Parenting Influence and Time
Because each state's laws regarding custody and visitation vary, it is difficult to establish a common set of terms and ideas on these topics. However, from a purely practical point of view, the two items that matter most to parents (and sometimes they do not know this when they are making their own custody agreements) are influence and time, and these two concepts are important to sort out regardless of where you live.
The concept of time relates to the amount of time and schedule of contact with each parent. Influence usually refers to how parents make important decisions about children and which parent has the right to overrule the other parent's disagreement over how the children should be raised.
There are dozens of combinations of time and influence, and there is rarely only one combination that will benefit kids. While finding a good combination of time and influence is important, obsessing over minutes of contact or complicated protocols for exerting influence can be counterproductive.
To show how different states can vary on the legal definitions of custody, consider New York, the state in which I practice. The court system in New York does not have a statute for "joint custody." The only way you can have joint custody is by agreement; a court cannot order it. Joint custody in New York is whatever two people decide it should be, so the terms of one divorcing couple's joint custody might be very different from the terms of another couple's.
On the one hand, this is a good thing because people's decisions about joint custody are made in an atmosphere of agreement. On the other hand, it creates problems in other areas. For instance, in New York, whoever gets custody also gets child support. So, there are a number of cases where parents are at least equivalent in their ability to raise children, but if one feels the need for that child support check to survive financially, there will be a custody battle.
Texas is a state that does things completely different from New York. In Texas, and many other states, the "default" custody arrangement is joint custody. If people want sole custody they have to sue one another for it.
In Texas they have what is called a standard possession order, which describes, among other things, the principles on which children's time should be divided. Notice how directly the Texas Family Code expresses the belief that children should spend quality time with both of their parents:
It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child. It is preferable for all children in a family to be together during periods of possession.
—Adapted from the Texas Family Code, Sections 153.311 through 153.317
I think what I like best about this section of the law is that it looks to me like it could have been written by a mental health professional!
If You Don't Know, Ask
Do you know your state's policies regarding custody? If you don't, do some research or ask your lawyer. Also ask your lawyer what your state's idiosyncrasies are regarding residential custody, shared parenting, spheres of influence, and alternating weeks.
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