Custody/Visitation

There are 2 options for custody, sole custody and joint custody. Sole custody means that one parent makes all of the major life decisions and day to day decisions regarding the minor child's upbringing, including issues concerning education, health care and religion. Joint custody does not in any way refer to the amount of time the parent is spending with the child, but rather gives that parent equal decision making power in the three most significant areas in a child's upbringing, education, health care and religion. If you can get along and talk about your children in a civil manner, you might want to consider going with joint custody. Parties who have joint custody feel they have significant input into their children's lives are much more likely to keep an active role in their children's lives, which is usually in the best interest of the child.

If, however, you are unable to agree on much with regard to your children, then I absolutely do not recommend joint custody. Joint custody can be as broad as the parties choose to make it. You can leave it with the statutory requirements of consulting and agreeing on significant life decisions in the areas of religion, education and healthcare. Or, you can include decision making power on all significant decisions, including day care, extra curricular activity participation, sports participation and any number of other areas that people who are still married make joint decisions on concerning their children.

Joint custody does not mean that neither side pays child support. In joint custody, the case law requires that one party be designated the "residential parent". The child will be registered for school from that parent's home address and that parent will make all of the day to day life decisions for the minor child. The nonresidential parent normally pays child support according to the statutory guidelines which start at 20% for one child, 28% for two children and 32% for three children. In unusual circumstances, when the non residential parent has the children a good deal of the time and hence has increased expenses because of having them so much, the Court might make a finding that the statutory guidelines are not fair and that a lesser amount of support should be paid.

Extra curricular activity expenses are usually divided between the parties, either 50/50 or if there is a great disparity in incomes prorate based on income. Parties will often agree that only one or two activities at a time for each child will be allowed. Day care expenses are also divided between the parties. Again, that is either on a 50/50 basis or with a great disparity in income, then prorate. Both extracurricular and daycare expenses are on top of the child support paid.

If you are unable to agree as to custody being joint or sole it will be placed before the Judge, first in a Pre-Trial Conference setting, then, if an agreement still is not reached, at Trial. Pre-Trial Conferences often get things settled. The Judge will listen to both attorneys' arguments in favor of their client's position and then make recommendations as to what he or she thinks is reasonable. It will be the same Judge that hears the Trial several months later and several thousand dollars later on custody. So, it usually makes sense to live with the Judge's Pre-Trial Recommendations. Child custody cases are very expensive to try. For one thing, we always prefer to use an expert witness and have a custody evaluation done. Those run anywhere from $2,500.00 to $5,000.00, depending on who you use and how extensive their research is into the case. Our Local Rules require that you attend mediation before asking the Court to decide custody issues. Sometimes people are able to reach an accord in mediation. You are required to make a good faith effort to do so in mediation, but are not required to come to terms in mediation.

Visitation is called parenting time when there is joint custody and visitation when one party has sole custody. Either way it is open to the parties agreement on the dates and times, taking into account the child's schedule to a reasonable degree, and if you are unable to agree then, to attempt to agree in mediation, and if that is unsuccessful to put the issue before the Judge in a Pre-Trial Conference setting and then to Trial if you are unable to come to terms after a Pre-Trial Conference. Parenting times start with a bare minimum of alternate weekends from Friday to Sunday evening. If the parties live close enough together, they often have one or two evenings during the week. Depending on the child and how versatile and adaptable they are, overnight visitation during the week can work, as well. That depends a lot on the child's ability to keep track of their homework, extra curricular equipment, etc. It also depends on whether the child is comfortable in both houses and does not particularly need one home as a home base to sleep in most nights. Most people do agree that the child will have alternate weekends with the noncustodial parent and one or two evenings, not overnight during the week. During the school year, the party with visitation is expected to do homework, get the child to extra curricular activities, and anything else that needs to be done on those days.

If your job allows, and you are off a lot of the minor holidays that your children get off of school, you can also incorporate those holidays into the visitation schedule. Alternating major holidays is standard, with the exception of Christmas. People often have traditions where one side of the family always does something on Christmas Eve and the other on Christmas Day. That can be the same from year to year. But, with other big holidays such as Easter, New Year's Day, Thanksgiving, etc., we normally alternate.