When parents are in litigation, the process is inherently adversarial. This means that parents are usually “fighting it out in Court” as adversaries because they are having a difficult time at compromising. Or, as I like to think, maybe they simply got started on the wrong foot, not learning soon enough that litigation is not the only way to divorce. Divorce does not have to be adversarial!
For parents, I strongly promote mediation and collaborative divorce, which are settlement-oriented processes. Most parents, even when divorcing for a variety of reasons, want to ensure THEY are raising their children and not a COURT. However, a plan for custody and parenting time is necessary prior to receiving a Judgment of Divorce. It’s how you get to that plan that is extremely important. Do you need to fight it out, have a judge make a decision, or can you compromise and figure out yourselves what would be best for your children?
If parents cannot settle the issues surrounding the children, the Court will need to step in and exercise its “parens patriae” authority. This means that a Judge, who does not know you or your children, will step into your shoes (as a parent) and make decisions about custody and parenting time. Think about it: Rather than being a “legal” issue, the well-being of your children is really a human or family responsibility. A divorce does not necessarily mean your family ends; it means that your family changes. The Court will finish your case, but your relationship with your ex and your children will never end.
First the parents need to decide on whether to share joint or sole legal custody. The major difference is who is designated to make the big decisions in a child’s life, such as their religious upbringing, choice of schools, choosing healthcare providers and making medical decisions for them. So long as the parents get along relatively well, those big decisions are usually made by both parents agreeing to joint legal custody. It is rare that one parent chooses not to be involved in those decisions or is completely adversarial with the other parent, prompting a court to decide that only one parent makes those decisions.
The second part of custody concerns who the children will be staying with during the week. This could be called visitation if one parent has a great deal of the time caring for the children, and the other parent sees the children occasionally. However, more and more parents are finding that a joint physical custody works better for the children. That does not mean that time is necessarily equal, it is just that both parents are actively raising their children. There are all types of parenting time plans that can work, but it is most important to focus on the needs of the children and the logistics of the parents. The best parenting plans are individualized for a specific family.