CSP Team Note: This is the second in a three-part series written by Rebecca Wofford, a family law attorney and partner at Wofford Law, PLCC to help our readers navigate the divorce process. Read part one here. Rebecca is also founder of The Lunch Project – see her most recent Smarty Mom profile here and her first profile here – she was also 2014 Smarty Mom of the Year!). Nobody wants to go through this, but when this is the best option for you, we’re hoping this series of blog posts will be helpful to you.
You may have married him, and you may want to be separated and divorced from him, but if you have children with him, the two of you will continue to be tied together as parents — perhaps for a very long time. You will go to bar mitzvahs, graduations, weddings, and the hospital for the births of grandchildren — together.
Divorce is hard on two people who married each other and now have to undo everything, including things like their real estate, bank accounts, student loans and credit cards. Once they separate, they have to continue to live separately which means often times the same income now pays for two standards of living in separate households. For parents, however, the financial issues are not always the hardest part. At least, marital property and debt can be divided and you can figure out how much support needs to be paid so both you and your ex-spouse are financially capable of moving forward. The goal for attorneys representing their non-parent divorce clients, is to separate their marital estate and allow them to become individuals again, perhaps with the only tie between the two being a monthly support payment.
Financial issues aside, and, yes, they can be very difficult, for our clients who are parents, issues about how life will be for their children after divorce are often the most difficult and daunting. There is no family law attorney or judge who can completely separate you from each other unless one parent has lost his parental rights, which very rarely occurs since the right to parent is a constitutional right. For the vast majority of our clients who are parents, they will continue to co-parent after divorce. Our legal system determines “custody” but I hope you and your spouse, if you are going through divorce, will determine how you will co-parent in the most healthy way possible. If so, you will set a great example for your children.
In our law, “custody” is defined as having two major components, legal custody and physical custody. “Legal custody” is having the right to make decisions on behalf of your children. As parents, we make major decisions such education, religious and medical decisions for our children. We also make day-to-day decisions such as what food they will eat, what time they will go to bed, what consequence will occur if they misbehave, and the like. After divorce, generally, the parent who has the children in their care will make day-to-day decisions. During the divorce process, parents will need to agree or have a judge decide for them who will make major decisions for the children and how they will be made. Options include joint decision making, i.e. deciding issues together, and maybe having a process in place in the event of a tie; or appointing one parent as a final decision maker for some or all issues. Parents should discuss this with each other and with their attorneys to determine what will work best for them.
“Physical custody” is quite literally who has the child in their physical care or control. In collaborative law, it is often referred to as parenting time. When will the children spend time at mom’s house versus when will they spend time at dad’s house. If the Court makes this determination, as with all issues related to children in the custody context, the Court will use the legal standard of the “best interests of the child.” However, judges do not know you and your family and often see a wide spectrum of people in their courtrooms. Therefore, if parents can decide what realistically and logistically works for their family, they should. Keep in mind that, in most cases, children need both of their parents and parents should have access to their children and be able to enjoy a healthy relationship with them. Work schedules and travel may dictate that one parent has more parenting time than another and this may change as the children grow and parents’ work and lives change. You will need to inform your lawyer of what roles you have played in your children’s lives to date and what you believe is best for them and what you are capable of doing as a parent after divorce. Try to continue living the values and standards you have set as parents for your family even though your family will take a different shape after divorce. If your values and standards were not established in a healthy way during your marriage, take time to assess who you are, what your values are and how you can live consistently with those values as you make decisions and care for your children after divorce. You parenting plan with your ex-spouse may become the best set of values and standards for your family.
If you go through the collaborative process to determine your parenting plan, you will likely go through a series of meetings where you will have an opportunity to discuss and empathize with each other and your lawyers can facilitate this. If the process is successful, you will reach an agreement that outlines the terms of your custody/parenting plan. This will often times be written into a consent order for court approval.
In the next blog post in this series, I will talk about why it is important to have a written custody agreement or custody order entered by the Court and what challenges and options parents have after divorce to ensure that the best interests of their children will continue to be met.