A custody dispute is by far the most complex and heated part of a divorce action. When engaged in a custody dispute, an attorney must first educate his or her client about custody and its different components, including defining different terms that the litigant must become familiar with in order to understand how the process works. Terms such as residential custodial parent, sole custody and joint custody are immediately introduced to a litigant who may carry preconceived notions of what these terms mean. What do these terms mean? What is the difference between legal custody and residential custody? What rights would each parent have if they obtained sole legal custody and primary residential custody? How will this play out?
Generally speaking, custody is divided into two parts: physical custody and decision making. Physical custody refers to where the child will reside. Being the primary residential custodial parent typically means that a child of school age will spend approximately twenty to twenty-two days per month at your home. The non-custodial parent typically sees his/her children on alternate weekends and for dinner visits during the week for an approximate total of eight to ten days a month. This may seem unfair, but this arrangement is preferred by old fashioned Judges in the courts because it provides the most stability and consistency for the child, as the child will come home to the residential custodial parent during school nights. This arrangement will most likely be the outcome after a trial if the parties cannot reach a settlement on the issue of custody. However, there are some Judges that will grant a more liberal parenting time schedule to the non-custodial parent and in some cases rare cases, a Judge may start a custody battle by providing a 50/50 time split and modifying from there based upon the conduct of the parties during the case.
However, many judges will tell the litigants that instead of allowing a total stranger to make these decisions for them, it is more advisable for the parents to settle the matter out of court, thereby taking the power away from the Judge to impose his or her opinion and beliefs upon the litigants. Parents are free to adopt the standard schedule, or negotiate variations of this schedule, which will be ratified by the Judge presiding over the case. Variations to the alternate weekend schedule include agreeing to split week parenting time, or even an alternating week schedule where the children will spend one week with one parent and then the following week with the other. Creativity in resolving custody disputes has also led to a very unique approach which is called a "nesting agreement", where the children reside in the former marital home on a full time basis and the parents actually alternate living in the home with the children, while having an alternate place of their own to stay when it is not their turn to be at "home". While these agreements are not the norm, they are used more frequently because litigants try to avoid the cost and time consuming nature of a custody battle.
Another consideration in a custody battle is who will have legal custody of the children. Legal custody is defined as decision-making authority. This branch of custody has many variations. Typically, it is broken down into joint custody and sole custody, but the terms can be misleading. Traditional sole custody is when one parent has the final say in all decisions for the children, including medical decisions, religious decisions, educational decisions and decisions regarding the children's activities. Joint custody is shared custody, where the two parents must consult one another and attempt to agree upon the decision. In some cases, the parties may agree to joint custody with consultation rights, but one parent can have final say over the other. Some states, like New York State, are deemed to be sole custody states, which means that if custody is challenged and the parents engage in a custody trial, the Court will only grant sole custody to one of the parents, but never both. The rationale behind that is that if the parties could not agree upon joint custody by voluntary agreement, there is likely acrimony between them and joint custody will fail and be a disaster that leads the litigants back to court to continue the litigation. The approach of judges in this regard does vary from state to state.
A more cutting-edge way to handle a custody dispute is to break up decision-making into the different "spheres of influence", which include educational decisions, medical decisions and extra curricular decisions. Breaking up decision making into spheres of influence can help when one parent has very strong feelings or beliefs about a particular area that is important to them. This gives the ability to instill these beliefs in their children's lives. So if there is a custody dispute, for example, decision making may be divided so that one parent has final say in religious issues and other has final say in medical decisions, and the parties can have joint custody as it pertains to making decisions for extra curricular decisions.
In sum, it is appropriate to first educate a client on the different components of custody so that the client may decide what is most important to him/her. This will differ from client to client, but the complexity and acrimony involved in custody cases will always remain as one of the most challenging parts of any family lawyer's practice. Ultimately, the more control the parents take over making these decisions between themselves, the better.