For most divorcing parents, child custody is their biggest concern. In this episode Kevin and Pat discuss the basics of child custody, how it works, how to go about establishing a custody schedule, and the key factors you should keep in mind during the child custody process.

Episode 3 Transcript:

Kevin: I’m Kevin Handy.

Pat: And I’m Pat Cooley.

Kevin: And this is episode three of the Divorce Rulebook podcast. Child Custody and what you need to know. We’re heading this topic as one of our first topics because child custody is a major concern for people with children. If you don’t have kids, you can obviously skip this topic. On this podcast we’re going to cover really all the major topics giving an overview of how child custody works. So we’ll cover what is child custody, how does it work, how do you go about establishing a child custody agreement or order, otherwise known as like a parenting plan or parental responsibility and the key factors that you should keep in mind when trying to get a custody agreement or order in place. So just as an initial matter, we’re going to discuss terminology. Many places it’s called child custody, but child custody can also be known as a parenting plan. Parental responsibility just depends on the state. It’s all really the same thing. We’re talking about a schedule when each parent can see the child. So in this podcast we’re going to just generally refer to it as child custody. Generally there are two types of child custody, legal and physical. Do you want to discuss that Pat?

Pat: Sure. Well, legal custody is basically the decision making power. Things about religion, schooling, major important decisions.

Kevin: About the children, medical decisions. That’s usually a big one, like someone’s going to have surgery, something like that.

Pat: That’s right. And for the most part legal custody is joint, it’s shared. It is very unusual, possible, but very unusual for legal custody to be designated to one party. That would only happen in, I would say severe cases where someone either is mentally infirmed, substance abuse, things like that, but other than that you’ll generally see parents sharing that decision making power.

Kevin: It’s very unusual. The times I can think I’ve seen joint sorry..The times I think I’ve seen just one parent having legal custody is where the other parent has literally disappeared or it just can’t be found. I’ve even had joint legal custody where a parent is in jail. The reality of the situation is parent who has the child with them that spends the most time with the child, they’re actually going to be the one in all practicality who makes most of the decisions. Not like you have to run every single decision by the other parent.

Pat: I agree. But remember, if you’re not that person and you really feel that a certain issue is important, if you can’t resolve it, you always have an opportunity to take it to court. Sure.

Kevin: And that does happen from time to time. About surgery, can you think of any other examples where people have taken major decisions to court?

Pat: Well, education is a big one. I’ve had cases where private school versus public school, things like that, so that’s a big issue. Another one is overseas travel, which has become a bigger issue since 911.

Kevin: Right. And Covid was an issue about getting shots and things like that. But in general, legal custody is going to be shared, usually not a major issue at all. Then the other type of child custody is physical child custody. Do you want to cover that?

Pat: Sure. That’s basically where the kids are at any given time, which parent they’re spending time with. So physical custody is when the kids are with you. Usually a schedule is set out where it’s designated, what time Dad’s going to have the kids, what time mom’s going to have the kids. It can be real specific, it can be general, but basically it’s to give everybody, including the kids, an idea of where they’re going to be at any given time.

Kevin: Yeah. So when you’re dealing with physical custody, almost always you’re going to end up with some sort of written agreement or court order that, number one, sets forth the schedule for who gets to see the child or children when it’s almost like a calendar. Dad has the children on Mondays and Tuesdays and mom has the children on Wednesdays and Thursdays, etc. And it’ll set forth and usually in pretty detailed, like when are the exchanges, from what time to what time. And the custody schedule will also generally deal with holidays, how major holidays are split, vacations, who can take vacations, when. That will get down to some sort of nitty gritty stuff like who’s holding the passports, can you travel internationally without permission? For the other parents permission, what camp are they going to go to? So it can get pretty specific. Can you think of anything else about the schedule? Written schedule?

Pat: The only thing I’ll say is, if you’re concerned, keep in mind that while most cases there is a written schedule that is fairly detailed, if you’re a person who can’t fit into a detailed schedule, police officers who work varying shifts, sometimes nights, sometimes days, or people who travel extensively for work, if you can’t fit into a fixed schedule, it can still be worked out. You can still get a custody order. There just has to be some flexibility built in.

Kevin: Right. The written schedule can be anywhere from incredibly general to the parties agree that they will work together to give the fathers, the police officer father, as much custody time as reasonable, or it can be incredibly detailed. And you see that in cases that are contentious, where every little detail when the exchanges are who’s doing the exchanges, the exchanges are done curbside, where the child has to get out of the car, et cetera, can get really pretty nitty gritty. Most cases fall somewhere in between. There are cases where people share a custody of children and they have no written schedule. That really depends on the state that you’re in and obviously how well you get along. There are some states that do not require parents with children to have a custody schedule if they don’t want to. And there are other states that do require custody schedules, typically in conjunction with a divorce. If there’s minor children, the court will require that there’ll be a custody schedule in place before they would grant a divorce. I don’t know if they do that with unmarried parents or not, but you said in certain states when there’s a divorce, they will require a written custody schedule. Now that in general, the custody schedules can be modified by agreement of the party. So I always tell clients that the custody schedule is what you need to follow if you can’t agree otherwise, just because it says you’re going to get your children on Mondays from eleven to 2:00, if you agree otherwise, you can alter that schedule.

Pat: Yeah, just a comment. It’s hard. Sometimes something comes up and you can’t keep with the schedule. It’s better for the whole family situation, particularly for the kids, that people can work together. And you mentioned modification. You can formally modify it if it’s going to be a long term change, but if it’s just going to be, hey, I can’t pick them up tonight, can we switch to tomorrow night? I always just recommend confirmed that exchange in writing, text and email. But you don’t need to formally modify the whole agreement if it’s just a temporary switch.

Kevin: The best custody arrangements for sure are the ones where the parents are flexible. They’re willing to change the cutsy schedule as needed. And I always tell people you should be flexible because someday you’ll need a change. They’ll get themselves into trouble when they’re milling about, following the exact cut to the schedule. I get it. There are cases where that needs to be done, but in general it’s better to be flexible. So the next topic we’re going to cover is how do you get a custody agreement or order? And we’ll do that. We’re just going to take a quick little break and when we get back, we’ll talk about how you get the Custody agreement in order.

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Kevin: Okay, back from the break. There are different ways you can get we’ll start with an agreement in place. There are different ways you can get a custody agreement in place, and I have three different ways written down here kitchen table discussions, mediation, or attorneys. Do you want to start?

Pat: Sure. You’re the parents of these children, so you ought to be able to work it out.

Kevin: You ought to be able to talk.

Pat: To each other and do what’s best. Remember, if you reach an agreement as to the schedule, it’s going to be something you’ve decided you can live with. So sit down if you can. We recognize there’s a lot of animosity in some of the cases, and it becomes difficult. But if you can sit down and discuss what each of you want, what do you think is best for the kids and try to compromise and try to reach an agreement? Because if you do, I can be drawn up as an agreement, and you don’t ever have to go in court.

Kevin: Definitely much better if the parties can sit down and talk about it and really just sit there and consider the practicalities, like, who’s available when, just like you do when you’re married. Who can get the children tonight? It works better than just saying, hey, you get these days, we get these days. Or the flexibility you can get from sitting down, talking to other parents, and figuring out yourselves is going to benefit both of you and really the children in the long run.

Pat: Communication is key. I mean, you’re going to have the best relationship in custody if you can continue to communicate over the years that these children are minors. So if you can communicate at the beginning, that’s a good sign that you’re going to be able to continue to communicate throughout the children’s lives.

Kevin: So if you can sit down and talk about it with the other parent, then you guys can write down an informal schedule, kind of outline it, and then you can bring it to an attorney or a mediator, whoever, to write up a formal custody schedule. So the second way that you can come up with a custody agreement is through mediation, and that’s the next step up is if you’re having difficulty talking to the other parent, that perhaps having a neutral third party work with the two of you to come up with a schedule. And that can help because they can bring that neutral perspective, tell you what sort of normal custody schedules would look like in your situation, give you an idea of what the court might do. And if one person is being difficult, hopefully talk some sense into them.

Pat: Absolutely. It always helps to have somebody who has experience in this legal process help you kind of understand what’s going to happen with you, with your kids, and try to help you come to an agreement if you’ve been unable to.

Kevin: Wont say frequently, but it’s not unusual that one party will have unrealistic expectations about what the custody schedule should look like or what the norm is. They may think that, hey, I’m going to have full custody, or I’m just going to let the other parents see the children when it’s convenient for me. If they’re still fairly reasonable, then the mediation can help because it’s helpful to have that third party say, that’s not going to happen. There’s no way you can get that in court. This is what the court is going to do. If mediation doesn’t work, then obviously you’re stuck with the last choice, which is hiring attorneys to either negotiate for you or end up filing a petition in court. If both parties end up having attorneys, I think it gives you a little bit more of a chance to negotiate a custody schedule with a difficult the other side is being difficult, hopefully before you get to court, because the attorney can try and talk sense into the one party or the other. That’s being difficult.

Pat: Absolutely. And when you get to that point of hiring attorneys, the first thing they’re going to do or should do is try to help you reach an agreement. So before they run into court, they should be talking to you about where can you agree, where do you disagree, and what compromises could bring you to an agreement. In the end, though, your attorney is there to fight for you in court, if that’s required.

Kevin: Yeah, I’ve definitely had my litigation practice. I’ve definitely had clients that I thought were being unreasonable, and I will do all I can to talk sent into them. And if I really think they’re being unreasonable, I won’t go to court for them. I will fire the client. I know you’ve been in the same position.

Pat: Absolutely. We have as attorneys, have an idea of what will happen in court, and we know what works and what doesn’t. And you can only present things to the court that are going to help your case. It doesn’t do any good to force your attorney to bring up issues that they already know are going to hurt you.

Kevin: So then if you hire an attorney and the other side has an attorney, you’re not able to negotiate a custody agreement, then you’re really looking at going to court, and I’d say a good amount of custody cases and going to court. Probably 50%.

Pat: That’s probably right. Go ahead.

Kevin: Well, sometimes I think it’s because the other side is being unreasonable. Sometimes I think it’s because the other attorneys giving bad advice or some combination of the two, or there’s just some difficult impossible to resolve situation, like maybe somebody’s moving and wants to take the kids with them.

Pat: Right. And sometimes it’s both sides you can say, have legitimate arguments and you’re really just looking to somebody else to flip the coin. And I find that jokingly. The judges will say, when it’s a private school versus public school issue, both parents typically have good reasons behind what they want to do. And I’m going to say my experience is courts hate to make those decisions because they’re tough.

Kevin: Right? Yeah. Well, courts don’t like to make any decisions in custody because it’s always tough, and it isn’t very difficult to tell who’s telling the truth, who’s exaggerating. I don’t think I would want to be a judge trying to sit up there and play Solomon and decide who’s right or where the kids are going to go.

Pat: No, they’ll do it they’ll do it because it’s their job, but I don’t think they want to. And it kind of leads us to the next point, which is even judges, when you get to that point, might kick you back because it’s required or because they think it’s important to an evaluation. A custody evaluation or mediation.

Kevin: Yeah. So let’s go through alright, let’s assume they can’t reach an agreement with the other parent and they’re going to have to file in court. So how does that work? So typically you’ll hire an attorney. It can be done on your own, but it’s difficult. The first thing that generally happens is that there’s a petition for custody or parental responsibility that’s filed with the court, and that opens a case with the family court. Then that has to be served on the other side. Then the next thing that typically will happen is that there will be some sort of initial meeting or interaction with the court. Sometimes it’s called like a custody conciliation conference, initial custody conference, whatever it is, there’ll be some sort of initial meeting with usually some sort of attorney that works for the court. Would you say that’s the case?

Pat: Yes. Your first experience with the court isn’t going to be walking into a courtroom and putting on a trial. You’re definitely going to have some kind of pre trial proceeding again, aimed at trying to get you to resolve it if they can. Yeah.

Kevin: So sometimes that first meeting will almost be like a mediation session. It’s kind of like an information gathering or mediation session. That’s typically what I’ve seen. And the court wants to know, like, okay, how far apart are these parties? What are the issues? Are there serious issues, or is it just sort of the basic, like, where the kids going to go to school? That type of sort of standard issue from there. And I think it depends on what court you’re in. Sometimes the courts will sort of, as a matter of course, send you to a custody evaluation, other times they won’t. What’s your experience with that?

Pat: Well, I think for sure if the disputes are big and it’s kind of like both parents want primary custody, most of those clients are going to end up in some kind of evaluation.

Kevin: But I think it really depends on what court because I can think of some courts repraction where it’s almost like a rubber stamp, like, here’s your go, get your evaluation. And then other courts, it’s actually like pulling teeth to get an evaluation that they know that most of the litigants in that area don’t have the money to pay some private psychologists for a custody valuation. So they just kind of let the parties go right into court.

Pat: I was just going to say that not only do courts in different counties or different states vary, but even the judges in a single court will vary as to how they want to treat cases.

Kevin: Yeah, right. Custody is so variable and I think it’s really difficult. Something we should emphasize is it is so unpredictable what will happen in a custody case because you can kind of guess based on which court you’re in. But then depending on what judge you get, depending on what the judge ate for breakfast that morning, are they in a good mood or bad mood? You’ll get completely random decisions.

Pat: Yes. And here’s the gamble. I’ve had several judges say to me, that actually me and the party is in open court. One of you is going to win big and one of you is going to lose big. And neither of you know which one it is.

Kevin: Right. The other thing the judges always they give a little speech about, do you guys really want me deciding one of the most important decisions in your life? Like with the custody of your children? And sometimes you’ll just keep sending the parties out, go talk some more, go negotiate some more. I mean, part of it is because it makes more sense for the parents to decide the custody of kids, but it’s also because the judges don’t want to do it.

Pat: Yeah. All along the way, every aspect, everybody we’ve talked about is going to encourage you to try to be reasonable and to work it out.

Kevin: If you are ending up in front of a judge, something is not going well in your case for sure. So maybe you do a custom evaluation, maybe you don’t. And then the really the next step generally in the process is going to court for a trial. There’s not much what we call discovery in custody. You’re not really getting documents or information from the other side. Sometimes your attorney would talk to witnesses about things that have happened, like did one parent ignore the children or are they alcoholics or something like that. But in general, the custody child is going to be just the two parents.

Pat: That’s right. Just a thought on before you actually end up in a courtroom, there are those special circumstances such as you just described, where there can be psychological evaluations if there are significant psychological problems, there can be drug and alcohol evaluations if there are significant problems, and then those reports ultimately would be introduced in your hearing.

Kevin: Oh, right. Sometimes it’s done in conjunction with the custody evaluation, sometimes it’s done completely separate. It just depends. If you have a special situation in your case where you think the other parent is using drugs or alcohol or has serious psychological issues, you can request the court to issue an order for some sort of evaluation and it’s not unusual for that to happen. So if you’ve gone through all this and you’re actually getting ready for a custody trial, like, what is that like? And say fairly confidently, it will probably be one of the worst experiences of your life.

Pat: Absolutely. This is where you pull out all stops and we’re going to start throwing stones, so to speak. You’re going to be airing your dirty laundry.

Kevin: Yeah. I mean, anything and everything bad about you, but about the other side will be brought up, if possible. And what’s interesting is, in general, I don’t think the judges listen to it. It depends on how serious it is. But a lot of times it just ends up being sort of what I’m going to call meme calling three years ago, he didn’t do this. Or can you think of the sort of evidence that’s presented?

Pat: Well, absolutely. I mean, we get all kinds of evidence of what people did, things that normally have been gone and passed and forgotten, but now they’re being dug up and brought out in the trial. And I’ll tell you, litigants, people who go over and over all the bad things that their spouse does, I’ve seen often a judge turned to them and say, what can you say that’s nice about your spouse? And I’ll tell you what, if you sit there, close mouth and have nothing to say, you’re going to be in trouble with that court.

Kevin: This is where the text messages and emails and those kind of things come out. Trying to track the fights and bad things that were said over text messages, that’s a really common thing you see in custody trials. So just as an aside, I will say when you’re involved in family law litigation, whether it be divorce or custody, you have to be incredibly careful about what you put in writing. And I always tell my clients that you have to consider every text message you send will be exhibit A at some trial. I don’t know if we said this before in early podcast, but you have to be just incredibly careful about what you put in writing and you got.

Pat: To be realistic about what you have written as well. So many times I’ve had clients come in and say, look at this horrible email my spouse wrote. It’s terrible, I want you to put it in court. And I read down and see their response, which is equally as terrible. So make sure you’re reading the whole thing. And it doesn’t help you to put in part of an email because guess what? Your spouse’s attorney is going to cross examine you with the rest of the email. So make sure that the whole communication.

Kevin: Has been it reminds me of a custody trial I had along the same lines. I represent the mother, and the mother was like, oh, father is using drugs. He does cocaine. We put all those evidence and the judge said, okay, I’m going to order a drug test for both of you.

Pat: And in Philadelphia, it’s go right across.

Kevin: The street and get that test. Yes, it wasn’t. And so they walked across the street and guess what? They were both positive for cocaine. You got to be careful what arguments you make.

Pat: The other comment I make about the airing the dirty laundry and bringing up all the bad stuff is, remember the custody trial? That’s done at some point, but your relationship and your ongoing custody issues, they’re going to go on for the youth of these kids until they’re adults.

Kevin: And even past that, you’re going to have to deal with the other parent forever. You will always have children together. As long as you are alive and your children alive, you will have to be dealing with the other parent, whether it be during school, at graduation, at weddings, at family picnics, dealing with your grandkids, whatever. It does not make sense to burn bridges unless there is something. There are serious issues in addition to basically airing all your dirty laundry in court in front of all kinds of different people. The thing you should understand, too, is that custody trials generally take months, if not a year or more. It takes forever to get through a custody trial in general, I absolutely agree with that.

Pat: It’s rare some courts will schedule kind of a few days together to finish your trial, but my experience is that more often than not, your trial will be scheduled that first day. You’ll be lucky if you get a little couple of hours in front of the judge. And when you come back, it’s not necessarily the next day, it’s six to eight weeks later. And if you have a five day trial a year later, you’re still yes.

Kevin: I don’t think most people who are not familiar with the court system can fully appreciate how bad this is. But yeah, you’ll get scheduled for a custody trial and a normal non lawyer lay person is going to think, okay, great, I’m having my trial on Tuesday. Well, you and 25 other people are scheduled for the same day, and they put all these people on the same day because some of those cases are going to settle. Some people are not going to show up. It’s kind of like overbooking an airplane. The court overbooks their day and sort of see what falls out. You could show up at court thinking, I’m going to have my custody trial today. And you sit around and you sit around and you sit around, and at 3:00, your case gets called, and you get to put on 30 minutes of evidence. And then the judge is like, well, you know what? I think that’s a good breaking point. We’ll get you scheduled for another day. In three months from now, you have a two day custody trial, and it’s going to be strung out over six to eight days over the course of 18 months. And then by that time, so much stuff has changed. It can be incredibly painful how long it can take.

Pat: That’s correct. And the longer it takes and the more hearings you have to go to, the more you got to pay. A custody can just be incredibly expensive. Yes.

Kevin: When people hear these numbers, like, my divorce cost me $100,000, that doesn’t happen. But most times the divorce costs 20,000 and the custody case cost $75,000. The custody can really be, like Pat said, incredibly expensive. Because just think about it. You’re paying your lawyer to prepare and then sit around, and then maybe your case doesn’t get called, and then they have to get scheduled for another day. They have to get a reschedule, they have to prepare again, sit around again, not a pleasant experience, and we sort of touch on this before the next thing is, all right, so now you’re all prepared. You got your custody schedule, you show up. I find the judges in general are not going to be interested in your custody case. They’ve heard you’re looking at me like I’m wrong, or do you disagree with me?

Pat: No, I agree with you very much. So. In fact, the things people want to put on are often so repetitive in every custody case, is that it’s not hard to understand that a judge, I guess, would say, has heard at all.

Kevin: Yeah, they’re sitting around doing this all day in, day out, and every case starts to seem the same, and you just start to see judges start to see the people who are there is just like, bickering about nonsense. It’s why a lot of or most judges tend to hate family court and want to get out of it. Our experience with our local bar is that a new judge will come on. They’ll be all excited, I’m going to help all these people. And then within six months, they’re like, beating down, and they’re just like, I got to get off the family court bench. So you have to understand your case is very special to you, and you think every detail of it is going to change the decision in your favor. The judge is probably not going to listen to even 80% of your case, and they’re going to base it on my experience, are going to be based on, do they like you? You. Seem like a nice person. Are you being reasonable? It’s sort of more of a gut reaction than a sort of diving into the evidence decision.

Pat: And I constantly remind people that you can get wrapped up in what you want or what you feel is the best schedule, but always think about your kids. The judges are going to want to see that you are proposing things that are going to be beneficial to your children and that it’s not just self serving.

Kevin: Yeah, that’s absolutely true. A good amount of litigants that are litigating custody cases are focused on themselves, what’s best for me as opposed to what’s best for the children. And that will give most judges credit. They actually will think about the children and what is best for the children, agree in making their decision. And that’s why if they think one parent and the other is bad mouthing the other to the kids and that they’re being nasty, they will frown upon that and it will go against you instead of helping you. So one thing I just wanted to cover was that I think a lot of parents I’m going to generalize here, but a lot of men will come in concern that at the beginning of a divorce or custody case that they’re going to lose their children. The other parents telling me that they’re going to get full custody and I’m not going to be able to see my kids. I just want to reassure people out there, there’s a 99.9% chance that that is not true unless there is something seriously wrong with one parent and the other. And I’m talking they’re violent, heavy drug or alcohol abuse, something that’s really going to pose a danger to the children. Both parents are going to get some custody of the children.

Pat: I agree with that very often, and I think, unfortunately, it’s because of tradition, we’ll have men come in and say that they feel very downtrodden, that they’re not going to see their kids or at least not see them very much. And I got to say that it’s not the case. It’s certainly not the case for the most part anymore.

Kevin: I’d say there’s a real movement towards 50-50 custody considering parents equally. I don’t think there’s much of the sort of preference for the mother left. I mean, there are some older judges out there that might feel like that, but in general, I’d say no.

Pat: And over the years that I’ve been doing family law, I’ve noticed that more recently, I have a lot more fathers who are getting primary custody because, hey, they were the ones that were the stay at home parents. So as you see the shift in society, we’re seeing a shift with the judges as well.

Kevin: Yeah, I agree completely with that. You do see a lot more fathers now with primary custody. What factors or considerations will the court take into consideration in making a custody decision? In general, the court is supposed to in deciding custody, the court is supposed to basically take into consideration the best interests of the child. And there may be wordings somewhat different in each state, but that’s generally the idea what’s in the best interest of the children. That’s what they’re supposed to base their custom decision on. That means basically anything the judge wants to mean. There’s very little law guiding custody. Do you want to comment on that?

Pat: No, I completely agree with that. The word they use is discretionary. They look at factors, usually they’ll look at things that have been traditionally in the best interests of the kids. But it’s discretionary with the judge, so it does give them a lot of leeway. And the other thing that that word signals is that this is your last hurrah. Because when you go up on appeal, it’s very rare that a judge’s discretion would be overturned.

Kevin: Right? Yeah. Essentially you’re stuck with whatever decision the judge makes. It’s almost impossible to change a custom decision on appeal. So again, that’s why you have to go back to what I said earlier, is that a lot of it is going to be based on, does the judge like you? Are you a likable person? Because it’s human nature. They’re going to think if they like you and you’re appealing to them, they’re going to think this person is going to be a better parent. Therefore the kids should be with this person more.

Pat: So no matter what, you got to try to put aside the anger, put aside the animosity, try not to engage in the name calling and tell the court why you’re a good parent and what you’re going to do that will benefit the children. Yeah.

Kevin: And how you encourage relationship with the other parent, for sure. Too.

Pat: Absolutely.

Kevin: And I think it’s always good to have in mind like, hey, I think the other parent is actually a good parent. And maybe based your custody case on practicalities of the situation, I think that is what the judges end up basing their decisions on a lot is the practicalities, who works when, who’s going to be around, who’s available for the children, kind of what has been done in the past. If you’re traveling, if you’re away Monday through Friday, traveling for work, you’re not going to custody the kids Monday through Friday, they’re not going to do that.

Pat: Absolutely. They definitely look at, well, what have you been doing as a family? And that doesn’t mean they’re not going to tweak that because obviously when you separate, if you’re a working parent, you’re not going to be there every night to see the kids. So they will take all of that into consideration. But you should expect that the court will do what is reasonable, as you said, giving travel requirements. You’re not going to have the children if you’re traveling. Also, other things that come into play are where are the kids in their lives, schools activities. Are you guys going to live in close proximity or is somebody moving far away? Maintaining stability is something you’ll hear a lot, is they want the kids to be stable so they will take into consideration these things.

Kevin: Yeah. I think it’s hard when a parent moves out of the school district or an hour away, and then there’s going to be an inclination to give the parent who is staying in the area, staying close to the kids activities more custody time, just for practical purposes so the kids aren’t being schlepped around.

Pat: Absolutely. And that’s why if you really want to play an active role in your children’s lives, you have to consider that. You have to consider that you may have to stay put or find a place to live within a close proximity.

Kevin: Once a custody orders in place, it tends to sort of stay in place, that’s sort of first custody order. Custody is always modifiable and the circumstances change, or custody where it can change. But I think there is an inclination on the part of courts to maintain the status quo. One judge I can hear saying, hey, if it’s working, why would I change it? When one of the parents are trying to come back and get more time? What’s your experience with that?

Pat: All right. I think they’re going to be looking for significant changes, maybe something that frees up a parent substantially so that they have more time to spend with the children. Or sometimes as children get older, their preference will play a role, so they may want more or less time with another parent. I mean, as they approach their upper teenage years, 16 and 17, they have jobs, they’re driving, and the whole aspect of it changes.

Kevin: I’ve also seen changes sort of in that early teen years, 13, 14, where a child will want to switch primary custodians for whatever reason, maybe they’re not getting along. You know, the kids are entering that difficult period and they think, my life is going to be better if I live with the other parents. So it’s not unusual that the primary custodian will change in the sort of teenage years.

Pat: Yeah, I do. I actually have a funny story about that. I had a client who happened to be the mom and she had primary custody, and the father would call the kids every day and tell them they don’t have to listen to their mom and actually cause trauma at mom’s house. And then he wanted more time and I said, Give him more time, and she did, and they went kind of an equal, I think it was even two weeks schedule. And after the first week, he was calling her saying, these kids won’t listen. And she just said, well, they’re on your time now.

Kevin: Be careful what you wish for.

Pat: That’s right.

Kevin: All right, I think that’s a good time for another break. And when we come back, we’ll talk about just some details. What are typical custody schedules, how to exchanges work, how does the order go into effect, those kinds of things. So just take a quick break here. I’ll be back in a minute.

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Kevin: Okay, we’re back. So we’re going to talk about some details of how custody agreements or custody orders work. So typical schedules, I think most people are familiar with the every other weekend. I mean, that’s kind of what is in popular culture. Oh, the dad has every other weekend. That still does happen, but I think it’s becoming more unusual. And again, that would be based on maybe the parent who has every other weekend is just really busy during the week and doesn’t have they work a lot or something like that. They don’t have time to be raising the children.

Pat: Right. That’s probably the longest standing schedule because it goes back to, again, the traditional family unit. But it’s definitely expanded. I always tell people that’s a minimal schedule, you can have anything up to reversing primary custody or sharing pretty equally.

Kevin: Just an example of one. And if it is that schedule, it tends to be like Friday to Monday, something like that. So one of the more popular schedules is what we call the two to five schedule. And in that schedule, one parent will have two days, the next parent will have two days, and then it alternates five days. So in other words, like mother might have Monday Tuesday, father might have Wednesday Thursday, and then mother in that case would have Friday, Saturday, Sunday, Monday, and then it flips. So then mother has Monday, Tuesday, father has Wednesday Thursday, and then father has Friday, Saturday, Sunday and Monday.

Pat: That’s right. And just in my experience, that schedule works very well for younger children as kind of an equal custody schedule. As kids get older into their teen years, sometimes people switch to more of a week to week schedule, which is another equally shared.

Kevin: I think that’s unusual when the kids are little because typically both parents want to see their kids and they won’t be away from their kids for a week.

Pat: Well, my experience is the experts recommend more frequent contact when the children are younger.

Kevin: Sure, yeah, it makes sense. I wouldn’t want to be away from my young children for more than a couple of days at a time then. Those are sort of the standards and there can be twists and tweaks and then there’s like sort of the oddball schedules, a call and that’s where generally where someone lives a great distance away, like in another state. So you might see that it’s like one long weekend a month and then extended time in the summer. Can you think of any other examples?

Pat: No, that’s right. In the further away they are, you’ll usually see if you’re trying to maximize the time with each parent, you’ll see one parent having most of the summertime and one having the school year and that’s when there’s a great distance between them.

Kevin: And oftentimes even when there’s not a great distance, you’ll see a different school schedule versus summer schedule where during the school year maybe it’s two to five and then the summer switch is week to week, something like that.

Pat: That’s right.

Kevin: It just depends on what works for the family, what works for both parties and the children.

Pat: And what we’ve been talking about is the basic schedule, right. What you do most of the time. Yeah, but there are special things that come up. Right, holidays.

Kevin: Yeah, typically holidays are in the schedule. You’ll see, some holidays are split like even odd years. So in other words, one parent, one will have 4th of July and odd years, the other parent will have 4th of July and even years. Major holidays and Christmas is usually the major example will be actually split into. So sometimes you’ll see Christmas Eve at 6:00 P.m. Until Christmas morning at 11:00 a.m. And one parent has had an even year, the other parent has an odd years and then the other parent will have Christmas from 11:00 a.m. Until December, something like that. And again, that flips odd even years.

Pat: That’s right. Now, don’t worry if you do something traditionally like well, I always have Christmas Eve dinner and you can have any variation on the holidays. So if you have kind of traditions that you follow and the other thing is you don’t have to worry if you celebrate different holidays. For instance, the Jewish holidays versus Christian holidays or other holidays, usually they can all be worked into a single schedule so that everybody has time on their respective holidays.

Kevin: Oh yeah, absolutely. In general, I don’t feel like there’s a whole lot of dispute over holidays. Most people, it’s like you kind of set up traditions and sort of know what works. So custody exchanges, how do they work? Custody exchanges? I’d say in general, the parent getting custody picks up the child from wherever the exchange has taken place. That tends to work better because then you can’t complain that the other parent is late to the exchange. If you’re in custody, maybe you’re picking the child up from either school or daycare or perhaps the other parent’s house and then when the other parents turn, they’ll come pick it up, the child up from your house or school. That’s what I see most often. Sometimes there are neutral exchange places where in difficult exchanges, hey, we’re going to meet at McDonald’s and that’s where the exchanges will take place.

Pat: Yeah, that’s right. And I agree that’s the norm for pickup and drop offs, but occasionally I’ve seen that vary as well, particularly if someone has taken the position that, well, the children won’t go and I can’t make them go. Sometimes it’s better to have the custodial parent responsible to deliver the children because that puts the burden on them, and if they’re not doing it, the kids aren’t listening to them. That could affect their custody schedule.

Kevin: Yeah. Or another example would be someone lives far away, sometimes the court will make them do all the driving.

Pat: Right. Often the cost of transportation is shared.

Kevin: Besides for like, airline tickets. When someone was in our state, I don’t know if I’ve actually ever seen anyone split up like gas. You will see, hey, the custody exchange is going to be halfway between two places that are far apart. You will see that. So that does effectually split the cost of transportation. Customers go into effect in general when the cars are no longer living together. That’s right. If you’re living together, you’re not going to be a custody green or custody because you’re obviously living in the same place. If you’re going to be moving apart, then you need to plan for that. So communication is another one. Do you want to discuss communication?

Pat: Sure. Obviously you have to communicate. We’ve talked to you a little bit about being careful how you communicate. I mean, if you’re writing a text or an email, keep it to the point, talk about the kids. Don’t, again, use this opportunity to air dirty laundry or criticize the other parent. Just use it to keep it to changes in the schedule, important information about the children if there’s a medical emergency, if there is a school event. But try to stay away from adding any other material that is not relevant to custody.

Kevin: Some courts or agreements will require that the parties use some sort of, like, custody app. Like, I think my family wizard is one. I’ve never actually seen how they work, but somehow they facilitate communication. And I guess you can put in activities for the kids. It’s got some sort of count or something. I believe they actually keep a record of all the exchanges between the parties in case they’re needed for court.

Pat: They do. And I think in some cases it eases the communication because, you know, now this is  where the judge is definitely going to see it.

Kevin: So you’re separated or planned to move out and there’s no custody agreement order in place. Now what do you do? Can you just move out? Do you have to go to court? I think you have to think about like, okay, well, can I talk to the parent? The advice I would give is if you’re getting them ready to move out, is that number one sit down with the other parent and try and work out a schedule. Say, hey, we’re going to be getting divorced. I’m moving out. Let’s discuss a schedule with the kids, trying negotiate, I agree.

Pat: And just a comment I want to make if at all possible, probably the best thing to do is before you leave, try to have that schedule in place. It can’t always happen, but I think it’s preferred that way. When you move out, you already know when you’re going to get the children. So I would just say, if it’s at all possible, try to get your ducks in order, so to speak, before you leave.

Kevin: And if you can’t, then you really need to sort of have a plan in place. Typically when I’ve had cases where a client of mine can’t sit down and talk to their spouse and they’re planning on moving out, we’ll be prepared to file immediately in court for custody. And typically, if you’re moving out and you’re the primary caregiver and you haven’t been able to negotiate a schedule

Pat: I was just going to say, for obvious reasons, if you are the primary caretaker and the other parents working, obviously you can’t just leave them in house. So it’s almost a matter of necessity. But you should also be addressing it with the court immediately if you’re going to do that.

Kevin: Right, that’s right. So typically the plan will be, okay, you move out, we’re filing immediately for custody, and you’re giving the other spouse notice through like a letter or some sort of communication, hey, I’ve moved out, got the kids, and propose like a schedule immediately. Here’s a schedule I’m proposing until we can get into court. There are other situations where maybe there’s abuse threats, and sometimes you have to get out and file what’s called a protection from abuse order or something similar. That’s what it’s called, where we practice and then generally those will cover the children. Now, what do you do if a parent moves out and takes the kids and you’re the one that’s left at home without the kids?

Pat: Well, certainly I would say don’t wait, take action right away. Because there’s another phrase we hear often in court, which is maintaining the status quo. So you don’t want to allow a status quo to be established where the other parent has fixed a schedule. So get to court or get dealing with the custody right away.

Kevin: I’m surprised how often someone will come in and the other parent will move down, taking the kids, and it’s now six months later, eight months later, and they’re like, I haven’t seen my kids for six or eight months. And if the other parent moves out and takes your kids, get to a lawyer file immediately for custody. If they haven’t done so, you want to get to court as soon as you can and get a custody schedule in place. And if the other parent moves out and not letting you see the kids, then in general, the court will treat that as an emergency and get you in the court at least for initial some sort of order custody schedule pending a full custody trial.

Pat: That’s right. They’ll make sure both parents at least are having time with their children. So in order to wrap this up, we like to just throw out a little bit of advice to you that kind of fits almost every situation. The most important thing, and I know we’ve said it before and I’ll say it again, be reasonable. Don’t be the type of person who is a control freak, thinks that they should dictate the schedule, they should be in charge, and the other person should be subject to their whim. Courts don’t like that person. Courts want people to work together. So don’t think that you’re the one in control. Don’t be bitter. Don’t try to punish your spouse, and certainly don’t use the children as weapons to do that, to punish the other spouse. Don’t badmouth your spouse to the children. Don’t let other people badmouth your spouse in front of the children. You should be encouraging that relationship. It is one of the most important relationships the children will have in their lifetime. Don’t be angry all the time. Try to get beyond the troubles of the marriage, and at least for your children, try to be happy for them. And I think that you will have a successful custody schedule. And if you work with the other parent and keep raising your kids together.

Kevin: I think that’s all good advice. All right, I think that wraps up this episode. I’m Kevin.

Pat: And I’m Pat.

Kevin: Thank you for listening to this episode of The Divorce Robot podcast.