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.

Residential Custody

Residential custody is sometimes used to describe whose house a child lives in primarily if there is joint custody but the time is divided disproportionately. The residential custodial parent is often assumed to have more responsibility and influence on day-to-day matters because that is where the child is most.

Shared Parenting

Shared parenting is sometimes used to describe custodial time that is set forth in the form of a plan. Shared parenting plans are usually quite detailed and describe the sharing of time in much more complicated terms than "father visits with the children every other weekend." Shared parenting plans often also describe how much influence or "say" each of the parents has on matters of importance (i.e., formal and religious education, medical decision making, etc.) in the children's lives.

Spheres of Influence

Spheres of influence does not refer to parenting time as much as it applies to decision making and influence. One of the problems with certain kinds of joint custody is that there is no way to break the tie that occurs when parents cannot agree on a decision. Sometimes, in order to prevent this type of stalemate, parents will decide (or a judge will order) that decision-making abilities for major areas will be divided between the parents. The four areas that are often identified for decision making are education, religious training, medical needs, and after-school activities. Dividing influence is a good strategy for making certain that both parents have some say in the decisions that influence their children.

Alternating Weeks

Alternating weeks is more a concept than a term, but it is a term that comes up often enough to warrant discussion. An alternating-week schedule is often an attempt to make certain that both parents have exactly the same amount of time. In this type of shared-parenting schedule the children spend one week at their mother's home and then the next week at their father's home, and the schedule alternates like this from week to week. People ask me about this type of schedule more than any other. As with any schedule, there is nothing particularly magical about it. It does offer the advantage of a mathematically equal split of time. I would not recommend a schedule like this for an infant, and certainly not if one of the parents relied heavily on childcare while the other was free to be with the child. I have also noticed that this is not a particularly good schedule when it is forced on people. In terms of influence, it is generally presumed that parents who adopt an alternating-week schedule will also share influence equivalently. Like all schedules, the success of a schedule like this depends a lot on the quality of the co-parenting relationship and how well the children can adjust to it.

Quick Tip

Don't make excessive last-minute demands to change visitation days and times. Everyone has their limits of tolerance.

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