Child Custody and visitation are determined based upon the best interests of the children. These determinations may be made by agreement of the parents or after hearing upon the findings and orders of a court.
Courts are supportive and very encouraging for parents to make these determinations by agreement. Courts know parents know their children better than anyone and can agree to custody and visitation arrangements they could not otherwise order. The Court also understands that when the parents make the plan, they have a better understanding of the plan, what is expected and show a higher level of compliance with the custody and visitation plan, resulting in less future Court involvement.
So, creating a custody and visitation plan should always begin with a conversation between the parents. Frequently, it is one of the most difficult conversations divorcing parents must have.
So, as family attorneys and mediators, we are often asked how do we create our child custody and visitation plan?
First, we suggest they take the word “custody” out of their vocabulary when speaking about their children. “Custody” is a legal term that connotes possession (as in ownership and children are not property to be owned or possessed) or detention (as in crime and punishment. Hopefully, your minor children are not criminals). Visitation is problematic in similar ways.
We speak in terms of co-parenting, instead. This recognizes the children’s need and right to have a Mom and a Dad involved in their lives post-divorce.
We suggest parents reframe the “custody and visitation” question. Ask instead, “What is the best plan that balances the challenges of work and life in two households that will meet the children’s needs at home, at school, socially and developmentally without placing an undue burden of adult responsibilities on them?”
Framed in this way, this question expresses the gist of the Policy of the State of California, as embodied in the Family Code and elsewhere, that the “best interests of the children” should be served and be reflected by parenting agreements and/or orders.
HOW TO MAKE A PARENTING PLAN IN THE CHILDREN’S BEST INTEREST
We have never met a parent who did not agree with the statement, “[I] only want to do what’s best for our children”. Not surprisingly, no one has ever told us they were notconcerned for the children’s best interests. Even parents who are not in agreement on what the best interests of the children looks like, agree in principle.
Based on our experience, parents know their children better than anyone else and, given the opportunity, will make the best decisions about the children’s future, including co-parenting arrangements.
By “given the opportunity” we mean with the best advice and guidance from experienced divorce professionals parents will make the best decisions about their children.
Why should parents seek “the best advice and guidance from experienced divorce professionals”?
- Most parents have never guided their children and family through a divorce before. Next to a death in the family, this is the biggest crisis the family can face.
- Most parents are processing through some stage of grief. Divorce is not an event; it is a journey of loss similar to a death in the family. Grief affects our thinking, functioning and resiliency. It can be overwhelming, at times.
- The fog of war [FOW]. FOW is a term used for the uncertainty in situational awareness experienced by participants in military operations. The term seeks to capture the uncertainty regarding one’s own capability, adversary capability, and adversary intent during an engagement, operation, or campaign. FOW impacts judgment and decision making.
- Mistakes or errors created due to the impacts of numbers 1 – 3, above, cost unnecessary money, lost time and lower quality of outcomes for everyone involved.
Consider this: When researchers ask parents, 10 years after the divorce, if they believed they were making decisions in the best interest of the children, their response is yes, at the time, they honestly thought they were. However today, in hindsight, they now realize in many ways they were putting their own needs ahead of the needs of the children.
Having an experienced professional to guide them can be of immense help.
The antidote is to work together to have the necessary difficult conversations while being supported by “the best advice and guidance from experienced divorce professionals”.
Mediation & Collaborative Divorce: Professional Resources to Help with a Co-Parenting Plan
In a Mediation and/or Collaborative Divorce processes, employing a trained child advocate to be the voice of the children’s interests helps parents shepherd children through the family divorce. Divorce coaches can help grieving parents cut through the FOW to find clarity. And non-court legal counsel can answer questions and draft durable legal agreements.
The Mediation process and Collaborative Divorce process provide the professional assistance parents need to walk them through the preparation of their co-parenting plan, one appropriate for their own children and their children’s best interests, moving beyond the disagreements and without going to court.