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Divorce itself is hard enough; but when there are children involved, it can make the process even tougher. As a result, one of the most emotional aspects of a divorce is the need to establish a custody and parenting-time arrangement. This goes far beyond the simple question of who gets the child in a separation. Your custody agreement needs to include such details as establishing legal and physical custody, developing a parenting-time schedule, creating a holiday schedule, and more. The hard part about this process is that it’s not always easy to foresee needs in the future—for both your children and yourself. You’re caught up in the emotions of the divorce and it’s normal only to be concerned with issues that you’re currently living with. Your children may be toddlers, so topics such as child-care and preschool may be top of mind—rightfully so. But as your kids hit the teenage years, new concerns and situations will pop up that you haven’t even begun to think of yet.
In order to help draft a custody agreement according to NJ custody laws, the court has implemented a number programs that are aimed at aiding parties in reaching an amicable agreement, like the parent-education program and parenting-time mediation. These programs, along with guidance from an experienced divorce and child-custody attorney, will enable you to figure out who gets the child in a separation and also create a custody agreement that’s best for your entire family. Once you and your spouse have reached an agreement, it will become a part of your final settlement. Here are some tips to help you make the most of your custody agreement:
1. Establish legal custody and physical custody
There are two types of legal custody—sole or joint. The vast majority of parents share joint legal custody of their children, which means that they are required to make major decisions together. These generally include decisions about education, health, and welfare. The designation of joint legal custody does not give rise to an automatic 50/50 parenting-time schedule; it simply means that you will have a shared-parenting agreement and that you will each be involved in decision-making for the children.
Some parents choose to have joint physical custody arrangements as well, which means there is a significant amount of shared parenting time. Some parties opt to do a 50/50 arrangement, and in that case, they have equal parenting time with the children and may alternate days, or even weeks, with the children. Many parties decide on a schedule that may be more than alternating weekends, but don’t reach the level of 50/50. The best part about settling your parenting-time issues without the court’s involvement is that you can make a schedule that works best for you and your family—and you are the only ones who know what’s best for your situation.
2. Create a detailed parenting-time schedule
It’s important that your custody agreement includes a very detailed parenting-time schedule. It is more beneficial to you and your spouse that you create this schedule during the divorce so that there is less subject to question following the divorce. For example, your custody agreement should have specific times for pick-up and drop-off for parenting time. It should also include details about who will be providing the transportation, such as the party who is receiving the children will pick them up from the other parent at the chosen time. This will result in less confusion and unnecessary disputes about who is responsible for what.
3. Include a holiday parenting-time schedule
You should also include a detailed holiday parenting-time schedule to avoid issues with sharing the holidays post-judgment. Keep in mind that you and your spouse will both want to spend time with the children during the holidays and that you need to reach an agreement that provides for a fair amount of time with each of you. How many holidays you want to include in your agreement is up to you and your spouse; some couples choose to include all holidays or school breaks, such as President’s Day weekend and teacher’s convention breaks. Other couples choose to only cover the major holidays, such as Thanksgiving and Christmas. One way to achieve this is to alternate years so that Mom gets the kids for Christmas and Easter in even years, while Dad gets the kids for Thanksgiving and New Year’s in odd years. And if Easter falls during Spring Break—which happens more than you’d think—you can decide whether Easter or Spring Break trumps the schedule.
Some parents want their holiday schedule to be vague and simply say something like, “The parties will share holidays by mutual consent.” This is a recipe for disaster. You are not getting along with your spouse now—it’s why you are getting divorced. Why would you suddenly expect to be able to agree upon who gets to spend Christmas morning with the kids? You will be much better served by drafting a comprehensive holiday schedule that clearly outlines how holidays will be shared. Also include pick-up and drop-off times and details regarding transportation for holidays in your custody agreement. Try to anticipate any possible scenario so that you can put it in writing. This will minimize any potential issues in the future.
4. Be specific about vacations with the kids
As you can see, the theme to parenting-time schedules is details, details, details. One area that is often overlooked in custody agreements is details regarding vacations with the children. It’s standard to say that each party gets two weeks of vacation. But what people often don’t consider is, does that time have to take place during summer vacation or can it be throughout the year? Can the two weeks be consecutive or only one week at a time? It’s generally a good idea to also set a deadline by which each party will choose their vacation weeks, such as all vacations will be decided by May 1 of each year. You may also want to say that Mom gets priority in even years and Dad in odd years so you have a fair resolution in case you both select the same weeks. Also, vacations take priority over regular parenting time, but they should not take priority over holiday time. Being specific about these details in your custody agreement will give you the best chance at a calm post-divorce life.
5. Put ALL changes in writing
Your custody agreement is the result of a lot of hard work, and you don’t want to undermine that by making side agreements with your spouse. While it is likely that you will need to make arrangements at times to exchange weekends or modify the times to accommodate a special event, don’t get into the habit of routinely modifying your schedule. This can result in confusion and additional arguments about whose time it is with the kids. Additionally, if you and your spouse agree to make changes that are intended to be permanent, be sure that it is in writing. Ideally, it should be drafted as a Consent Order and signed by the court so that it has the same force and effect as your original agreement. If you do not want to be that formal about the arrangement, at least be sure that you have something in writing that states that you both agree to the change. If it is in writing and an issue arises, you will at least have that to present to the judge to show that there was an agreed-upon change.
6. Don’t involve the children or use them as messengers
Your children are children, not mini-adults, and you should do your best to remember this with regard to your parenting-time arrangements. The kids should not be used to relay messages between you and your spouse or to deliver support checks. It is best if the kids know and understand the parenting-time schedule, but they should not have any other involvement in the schedule—at least until they are old enough to manage their own schedules. If you and your former spouse are having issues with the parenting-time schedules, do your best to keep the children in the dark and wait to speak to them about the changes until after they have been decided.
7. Make sure your agreement contains specifics
Often people want to leave the parenting-time schedule open-ended or include language like they will have “liberal and reasonable parenting time.” This is not a good idea. Who’s to say that your view of liberal and reasonable is the same as your spouse’s? Or the judge’s? While you may seem to see eye-to-eye today on parenting styles and decisions, that could change in the future, especially if one of you is to remarry. You will be much less likely to run into issues post-judgment if your agreement includes specifics. Some important details to include are pickup and drop-off times, who will be handling the transportation of the kids, and telephone contact with the children while they are with the other parent. Having specifics in your agreement will provide guidelines and result in less conflict down the road.
8. Consider using mediation for child custody
Child-custody cases are typically some of the most adversarial types of cases heard in family court in New Jersey. These kinds of cases are deeply emotional and often result in parents slinging as much mud at each other as possible to try to sway the court. The results of these cases are usually an order according to NJ custody laws that makes neither parent completely happy and a co-parenting relationship that has likely been damaged beyond repair. Children are also often the unintended victims in these cases, being pulled in two directions.
There is a better alternative. Mediation can be used to resolve child custody cases in New Jersey. Parents meet with a neutral third-party mediator, usually an attorney trained in mediation. The mediator guides the parents through the decisions that are before them in a cooperative and thoughtful manner. The emphasis is on finding solutions together and working as a family to plan for the future. There is no finger-pointing, blame, or personal attacks. Instead, the parents are encouraged to work directly with each other and create compromise. In addition, parents who use mediation are able to save a lot of money since mediation is much less expensive than a trial.
Parents emerge from mediation with a complete parenting plan that is approved by the court. The plan is customized to fit their unique family and is not a cookie-cutter solution. Parents who use mediation find that they are able to use their problem-solving skills to solve conflicts that may come up in the future, keeping them out of court. Children benefit from the process because it is peaceful and family-focused. They see that their parents are continuing to parent together, preserving a feeling of security.
DeTorres & DeGeorge are experts in NJ custody laws and handle divorce, custody, and mediation cases. Call us today at 908-304-9683 to schedule a consultation.
