Child Custody – Sharing When You May Not Want to Share

Divorce is challenging, and child custody is often even more so. This is particularly true when one or both parents are determined to get the biggest piece of the pie, with the ‘’pie’’ being child custody. Doing so, often creates trauma in children and usually becomes an on-going unpleasant ritual between parents and the court system. But, there are ways to make the ordeal of child custody tolerable and fair to all concerned.

Start Planning Now to Save Headaches Later

If you are in the divorce process, you should begin planning a custody and visitation plan. This plan must be focused on children’s needs instead of parental needs. It simply creates a ‘’sharing’’ of children plan and parenting responsibilities. Known as a ‘’Parenting Plan, or Custody and Visitation Agreement, ‘’ the plan must be in writing, signed by both parents and the judge before it is enforceable.

Developing a Plan

It’s important to understand that Parenting Plans vary in complexity and are based on the children’s emotional and physical needs more so than the parents. Depending on the age of the child (children), parents may or may not have equal ratios of time spent with their children.

For example, most parenting plan experts believe that very young children do better if they have a primary caretaker and are not subject to continual change between parents as caretakers. As a result, there is normally one caretaker, so that the child (children) becomes attached to this one caretaker. In this circumstance, the non-custodial parent can expect to have short periods of non-overnight visitations with their children but can expect future timing to change based on the children’s emotional levels. As the child becomes older, they normally are better able to develop multiple attachments and should be encouraged to have longer visitations, including overnight visitations, with the non-custodial parent.

What Is a Parenting Plan?

The Parenting Plan can be short and simple so that everyone understands the Plan. It should include:

  1. Time schedule: Each parent’s schedule with their children.

  2. Decisions: How the parents will make decisions about the health, education and welfare of the child.


With this written plan, both parents and children know what to expect and conflicts and debates over shared parenting time should be reduced.


And, finally the Parenting Plan must be written, signed by both parents, signed by the judge and approved by the Court before becoming a legal document.

Can We Make Our Own Parenting Plan?

Yes, as a parent, you have the right to make a parenting plan on your own. It may be called a stipulation, time-share plan or parenting plan.

Both parents must agree on the plan before the judge will consider approving it. Once the judge signs the plan, it becomes a court order after it is signed by both parties and the judge and then filed with the court.


Consider the Practical Aspects of Any Plan

The first step in developing a plan is charting the schedules of the children and both parents. Doing so, helps to make realistic choices based on practical factors of all concerned.

Here are some ideas to make the plan easier:

  • On a calendar, chart the activities of each of child, including leaving and returning from school or daycare daily. Include both their standard and special activities, vacations and any other planned activities. Hint:  If you use a different colored pen for each child, this makes it much easier.

  • On this same calendar, jot down both your activities and those of the other parent. Hint: Again, use different colored pens for you and your ex-spouse. This should include your work times, meetings, planned activities and/or projected activities and plans.

  • Compare both parent’s plans to determine if there is common ground for scheduling purposes.

The Children’s Best Interests

It’s important to remember that custody and visitation should be planned around the children’s needs and best interests. The parent’s plan should be adjusted accordingly to ensure that the children’s interests come first. 


Parents must remember that ‘’kids come first’’ because children need the love, emotional support and security that parents can provide. And, it’s important to remember the children’s age, personality and experiences when planning. All children generally do much better when both parents are involved and participate in their children’s development and nurturing.


It’s also important to remember which parent historically is normally responsible for different commitments with their children and which parent is realistically able to meet the commitments in the future.


Before making commitments, it’s a good idea to consider the following:

  • When the child (children) have a problem or need to share their feelings, who do they turn to?

  • Which parent helps with homework?

  • What do the children usually do on the weekends?

  • If children spend time with relatives, who takes them for the visit?

  • When there are medical appointments, which parent takes them, or which parent picks up the child (children) at school or daycare when they are ill?

  • Which parent provides physical care, such as bathing, diaper changes, arranging for sitters, haircuts and feeding?

  • Who disciplines and sets structure for the children?

  • What kind of personal attention is given to the children, such as reading, sharing activities, teaching problem solving and/or playing together?

  • Which parent is responsible for the children’s social activities, such as birthday parties, play dates, class trips, games, lessons, or school plays, etc.?

The Legal Aspects of a Plan

All parenting plans must include a decision on who gets ‘’legal’’ custody and who gets ‘’physical’’ custody of the children.


‘’Legal’’ custody includes a determination of the following:

  • Decisions on the children’s education, religious upbringing, medical treatment, plus other legal decisions. 

  • If one parent makes these decisions, they have ‘’sole legal custody.’’ If both parents jointly make these decisions, they have ‘’joint legal custody.’’

  • One parent having ‘’sole legal custody’’ is rare unless there are issues with domestic violence and substance abuse, or there is an issue of one of the parents being unable to communicate.


‘’Physical’’ custody is defined as who children live with on a daily basis. 

  • A parent has ‘’sole’’ physical custody if the primary residence of the child is with that parent. The non-custodial parent has visitation rights.

  • In the case of ‘’joint’’ physical custody, the children live with each parent for significant periods of time during the week.


Both the custody and visitation plan should be consistent and detailed. It must specifically state:

  • Who gets the children when and where, in enough detail so that it is easily understood and enforced.

  • Additionally, there should be details on who has the children during the week and who has them on weekends. Who is responsible for transporting the children to and from each parent’s location. And, who will transport them to activities and who gets the children on holidays and vacations?

Step-Up Plans 

As children mature, the original plan may not be appropriate. For example, an original plan permitted the non-custodial parent limited overnight stays may need to be changed as the child grows older. A court may not agree to change the status quo because the children are more grownup and able to transition between the households.


One way around this is to develop a ‘’step-up’’ plan that provides periods of custody to the non-custodial parent when the children reach a certain age.


This type of plan is useful in reaching settlements when there are concerns about the parenting abilities of the non-custodial parent or the psychological harm that moving between two households will have on a child (children). 


Additionally, step-up plans foster a sense of true responsibility and reliability as the non-custodial parent and children become familiar with new routine and new households.


Step-up plans are also useful in encouraging parental responsibility where there is substance abuse issue or visitation must be monitored because a parent has endangered a child. The step-up plan should be written to allow the non-custodial parent increased time when specific goals have been met. For example, the non-custodial parent has remained clean and sober for six months.


Parents often alternate holidays each year, such as, one parent having even years and the other parent having odd years.


Since many holidays are celebrated on Mondays, parents often elect to extend the holiday over the previous weekend. It’s important to remember, however, that if your parenting plan includes switching custody on alternate weekends, a decision must be made on whether the holiday or weekend schedule takes precedence.


Typical holidays and special days include:

  • Mother’s Day and Father’s Day, 

  • Memorial Day, 

  • Children’s birthdays, 

  • July 4th,

  • Labor Day,

  • Halloween, 

  • Thanksgiving, 

  • Christmas Eve,

  • Christmas Day 

  • Parent’s birthdays and 

  • family reunions. 


Jewish holidays may include Passover, Rosh Hashana and Yom Kippur.


Parents often divide winter vacations and since the midway point of the vacations may or may not be Christmas Eve and Christmas Day, splitting these two days is common.


Summer vacation (or recess) provides more time and parents may determine that either parent may have the children for two to three weeks continuously if sufficient notice is provided in advance. If plans conflict between the parents, it’s often much better to agree on the even/odd years exchange for vacation allowances.

How Do We Modify a Parenting Plan If Circumstances Change?

The parenting plan can be changed by agreement once the plan has been signed by a Court. To do so, the parties change the plan and submit to the Court. If they cannot agree on the plan, parents can request that the Court modify the plan.


If the parent plan is part of a final custody determination, that party must prove that a change is in the best interests of the child (children) and they may also need to prove that a substantial change of circumstances has occurred if the plan gave one parent primary custody.

The Other Parent Wants to Move Out of State. What Can I Do?

If there has been no court order, several Court decisions have set forth the following rules to ensure the best interest of the child (children) in a ‘’move-away’’ situation.


If one parent wants to modify the Final Court Order by moving out of state, the legal standards depends on whether the original Court order provided for joint custody. The Courts have not defined specific percentages of time-sharing in a joint custody. For example, one Court determined that an alternate weekend visitation and an overnight stay every week, amounting to 30% custody as not joint custody but ‘’liberal visitation.’’


When parents have joint custody, the Court re-evaluates the situation and decides what is in the best interest of the child (children.)  However, if one parent has primary physical custody (generally more than 60%,) it is much more difficult for the non-custodial parent to prevent the ‘’move away.’’ The non-custodial parent must prove that the move is being made in bad faith or that it would be detrimental to the welfare of the child (children.) Only then, will the Court review to determine the best interests of the child (children.)


It is important to understand, that the law in this area is unsettled and if you are negotiating a parenting plan in this situation, it is best to ask your attorney for advice. 

What If Parents Cannot Agree on a Custody and Visitation Plan? 

Parents have the option of going to court and asking a judge for a temporary order if there is no agreement on the Plan.


The Court first sends the parents to Conciliation Court in which a trained mediator attempts to help the parents agree. 


If there is no agreement, the Court makes a temporary custody and visitation order that is in the best interests of the child (children.)  This temporary order continues until the parents reach an agreement or until custody and visitation is resolved in a trial.


Another option when there is not agreement on custody and visitation, is the court appointment of a mental health expert, such as a psychologist, to carry out the custody evaluation.


What is Custody Mediation?

Custody mediation provides parents an opportunity to resolve disagreements with the help of a mediation expert. If parents work out an agreement, the mediator helps the parents write a custody and visitation order.


The goals of mediation are:

  • Help parents make a parenting plan that is in the best interest of the child (children.)

  • Help parents create plan that allows the child (children) to spend time with both parents.

  • Help paremt(s) learn ways to deal with anger or resentment.

What is Family Court Services?

Family Court Services is normally part of the Superior Court, and it has mediators who mediate disagreements between parents regarding their child (children.)

There is no charge to pay for the mediators from the Family Court Services.

Do We Have to Go to Mediation?

Yes, when parents cannot agree on a parenting plan, mediation must take place.


The Family Code, the law in this area, requires that in a dispute regarding the child (children), the parents must try to resolve their dispute in mediation. If there is no agreement after mediation, the judge makes an order of a hearing. (Family Code Section 3170)

A mediation is required but you do not have to reach agreement.

What Happens in Mediation?

Mediation is a way to make decisions about your child (children) without going to court. The parents may make their agreement on taking care of the child (children.) The legal word for this agreement is ‘’stipulation;’’ it is also referred to as a ‘’parenting plan’’ or parenting agreement.


In general, during the mediation:

  • The mediator meets with the parents together and/or individually.

  • The mediator asks questions to develop an understanding of the family history. 

  • In cases of domestic violence, a parent may meet with the mediator separately. 

  • The mediator and parents determine the issues to be resolved.

  • The mediator helps the parents focus on developing a parenting plan that is in the best interest of the child (children.)

  • The mediator shares information on the needs of the children of different ages and stages of development.

  • Legal custody, parenting plans, holidays and vacation schedules, as well as other areas related to the needs of the children are addressed.

  • The parents consider the options and may resolve all, some or none of these issues.

Who Are the Mediators?

A mediator: 

  • Normally has a master’s degree in counseling, social work or a related field.

  • Has at least two years of experience working in mental health,

  • Knows how the family court system works, and

  • May also have information about possible helpful community services.

  • California developed the standards for conducting mediation. The standards are in the California Rules of Court 5.210.

What Do Mediators Do?    

Even though mediators are experienced in counseling, mediation is not about counseling. A mediator meets with both parents and helps them get agreement on a plan that is best of their child (children.)  


The mediator’s job:

  • Listen to both parents.

  • Be neutral.

  • Help parents look at different options.

  • Help parents decide when the child will be with each parent.

  • Help parents decide how future decisions about the child (children) will be made.

  • Help parents consider how to best protect the child’s (children’s) safety and welfare.


Guidelines for Mediation:

  • Parents treat each other with respect. Both parents will have an opportunity to explain their ideas.

  • Parents should listen to each other and try to find the real solutions.

  • Remember to put the child (children) first. Think about what they need and can handle.

Does the Mediator Meet with Both Parents Together?

Yes, usually. Mediators interview both parties together. In cases of prior domestic violence or if there is a restraining order between the parents, the parent victim of the violence, may request a separate meeting with the mediator. Or, the mediator may decide it is more appropriate and helpful to meet separately with each of the parents.

Does the Mediator Meet with the Children?

It is dependent on whether the mediator believes it will help the parents develop a parenting plan that is best for the children. 

Mediators are trained professionals who know how to interview children without making them choose between their parents or putting them ‘’in the middle.’’

Do We Have to Agree to a Parenting Plan in Mediation?

No. The parents do not have to come to an agreement. If this happens, the judge will make the decision.

In some courts, the judge considers the mediator’s recommendations about the parenting plan. It is wise for the parents to ask the family court services about the process in your court.

What Happens If We Can’t Reach an Agreement in Mediation?

There are Alternative Dispute Resolution (ADR) option you may try, including:

  • Meet and Confer:  Parents and their lawyers (if any) meet any time and as often as needed to:

    • Work out a parenting plan without a court hearing,

    • If there is a protective order, limiting contact between the parties, the ‘’meet and confer’’ may be through lawyer or a mediator in separate sessions. 

  • Settlement Conference: In some courts, parents may meet with 

    • the judge, neutral evaluators, or

    • family law lawyers not involved in the case to discuss settlement.

    • Check with your local court to determine if this is an option. And, 

    • If there is a protective order, the settlement discussion may be made through lawyers or a mediator in separate sessions.

  • Private Mediation:  Parents may hire a private mediator to help resolve the dispute:

    • Without going to court.

    • The parents may also hire other experts.


What is an Evaluation?

In some cases, the judge decides what is in the best interest of the child (children) to have a child custody evaluation. 

A Custody Evaluation is an investigation into the facts of the case. Usually, it includes interviews with the parents, children, and others who may have information about the situation, such as teachers, doctors, other relatives, or counselors.

It can also include other important reports that relate to the family, including court records, police reports and reports from providers of anger management or parenting classes.

The evaluator may also visit the home or school site. It is customary that a fee be charged for this service.

Who Does the Evaluation?

It sometimes is someone from the Family Court Services at your court, but it will not be your mediator. Or, the judge may appoint a private professional to do the evaluation.