Once upon a time and long ago, you and your spouse lived together under the same roof as a family. You slept together, ate together, vacationed together, and, most important, raised your children together. One, or perhaps both of you, worked outside the home. Sure, you were overburdened by household chores; sure, you were tired from too many hours at the office or on the train. But there were the compensations: The thrill and sheer idyllic pleasure of weekend soccer or basketball games, the gentle intimacy of an afternoon at the park, the dance recitals, class plays, and rounds of Monopoly or Scrabble on rainy afternoons. You also had some treasured time alone. While your spouse went off with the kids for an afternoon at the movies, you had the luxury of hanging out at home, no responsibilities, save for the novel you had to finish, perhaps, or the Chablis you were able to slowly drink.
Now that you are divorcing, things have changed. For many men, this life change means a move to another residence and the encroaching realization that you will not be seeing the kids as often as before. Perhaps you now realize that you might have been taking your kids for granted; the thought of leaving them may well be painful, far more painful than the split from your spouse.
Many women, on the other hand, are struck with the sudden realization that they must manage alone. An at-home mother may now be going back to work. The hours and days they devoted to their children will now be spent at some office while a baby-sitter fills in at home.
Before you make these changes, of course, you and your spouse must, if at all possible, put your differences aside to talk about how you will divide your responsibilities and arrange for the custody of your children.
Custody: You Once Took It for Granted, But Now You Must Negotiate
At first, the very concept of negotiating custody may seem alien. While you were all a family unit, you both had custody, though you probably never thought of it that way. You were just your children's parents, nothing more, nothing less. Together you decided where they went to school, what religion they practiced, and whether they would go through the ritual of braces or attend camp. It was natural in your family, as in most intact families, for you and your spouse to discuss these things and come to an agreement about what was best.
Once you and your spouse no longer live under the same roof, things will change. Now you will have to decide how these decisions are made. Will one parent have the final say? What role will the other parent...the one no longer living with the children most of the time...assume? Will one parent feel overburdened with responsibility or restricted in making decisions that are, after all, best made by the person actually living with the children? (For the parent who might be doing most of the child rearing, the thought of getting approval from an ex before taking a child for psychological or academic help, for instance, can be frustrating, indeed.) Will the other parent, meanwhile, feel cut off from his or her children, painfully disenfranchised from their lives?
You must ask yourselves these questions up front. If you can put your personal animosity aside for the moment, you might be able to arrive at a practical, workable custody arrangement together. If you can't, court battles, sometimes lasting until your children are finally emancipated, can ensue.
Custody Is Not Ownership
Any negotiation, of course, is based on the assumption that you understand what, precisely, custody is, and what it is not. In a way, it's unfortunate that we ever coined the term custody for parents who no longer live together. The term has so many negative implications: A criminal is taken into custody; a mentally ill or cocaine-ridden mother loses custody of her child because of child abuse.
Yet here we have two parents who have been living with their children, and, unless one parent has been abusive or is a drug or alcohol addict, both have been involved in raising the children; both have been supportive, responsible, loving, and kind. Yet because the parents' relationship broke down, in many jurisdictions one parent will probably get custody of the children unless it is decided otherwise.
Parents should understand that custody does not mean ownership. Children cannot be owned like a car or a house. What custody does mean is that one (or both) parents have the final say in the decision-making for major issues in child rearing (legal custody). Custody usually also determines with whom the children primarily reside (physical custody).
Losing Custody Does Not Mean Losing Your Children
When Barry and June divorced, Barry could not imagine relinquishing custody of his children. Barry's children embodied his personal hopes and dreams; he identified much of his success in life with his kids. When the judge decided that custody of the children should go to June, Barry went into a deep depression.
Barry needed to understand that losing custody did not mean losing his children. The custody battle was over, but Barry still had years of co-parenting ahead.
Custody is a legal term. But, if you are the non-custodial parent, your relationship with your children goes on, no matter what the official custody decision might be. You can continue to be involved with your children. If it's important to you, you will continue to share great times and impart the values you embrace. Whether you officially have "custody" does not have to change your relationship with your children. You can still be heavily involved in your children's lives.
Andrea, a producer of television commercials, was a career-oriented woman. Although she had three children, she decided to move from Pennsylvania to California after her divorce because she was given a unique opportunity to be a producer in Hollywood. Andrea called her kids once a week and saw them once every two months for one week. Andrea insisted on having joint decision-making after she moved to California. She claimed that if she didn't, she would feel uninvolved with her children. To prove to the judge that she was an involved parent, she wrote long letters to her children's court-appointed law guardian, berating her husband for trying to cut her out of the picture.
Andrea conveniently forgot that she was the one who had moved away from her children. More to the point, if she had spent as much time writing letters to her children as she spent writing to their legal guardian, her relationship with them would have been much closer, in reality, than anything formal decision-making rights would have given her.
What's important in the final analysis is your relationship with your children, over which you have total control.
Joint Versus Sole Custody: The Pros and Cons of Each
For the sake of the children, the goals of parents divorcing should be the same: involvement of both parents in the lives of the children and elimination of conflict between the parents. These two factors dominate all others when thinking about custody.
In the 1980s, there was a trend in many states toward joint custody, where both parents jointly decide on major issues regarding their children. Sometimes, joint custody includes an equal, or close to equal, living arrangement with each parent. Even if there is joint physical custody, the actual time spent with each parent can vary widely.
With sole custody, one parent has the final say in the decision-making for the children and the children primarily reside with the parent that has sole custody.
Remember, sole custody does not negate co-parenting. In either the joint custody or sole custody arrangement, both parents will continue their parenting roles.
In the last 15 years, psychologists have had enough time to do long-term studies on the outcome for families in joint custody and sole custody arrangements. Here are three of the most important findings of these studies:
- Joint custody is a viable option only if the parents have an amicable relationship with each other, communicate well, and live in close proximity. Parents in this situation feel more involved in their children's lives than the noncustodial parent in the sole custody arrangement. In a family where one parent says "black" and the other parent says "white," the children are better off with a sole-custody arrangement to reduce the possibility that their parents will fight over every decision that has to be made on their behalf.
- For parents not on friendly terms, joint custody and joint decision-making mean more room for disagreement and continuation of the conflict. These parents are more likely to return to court than the parents who have one decision-maker (sole custody).
- Children who tend to be easy-going by nature can adapt well to joint physical custody. Children who do poorly with constant change, have difficulty adjusting to new situations, and seem to need a great deal of stability and security in their lives do poorly with joint physical custody.
Determining the Primary Residence
The parent who has been most involved in the daily care of the children should provide their primary home. Traditionally, this has been the mother. In growing numbers, although still small, some fathers have been providing most of the care either by choice or by default.
Following is a checklist of routine caregiving tasks that will help you decide which parent should maintain the primary residence for the children. Be honest with yourself when filling out the checklist. Your children will benefit, and you will be more comfortable with the outcome.
Does the mother or the father or both do the following tasks?
- provide meals
- hold and comfort the children
- change diapers
- dress the children
- bathe the children
- play with the children
- take the children to the doctor
- stay home with sick children
- read stories to the children
- take the children to school or activities
- put the children to sleep
- attend school events
- discipline the children
- go to the children during the night when called
- arrange playdates for the children
Mothers Who Choose to Forego Custody
Our society, rife with double standards, puts women in a bind when it comes to family. Women fought to be able to earn as much as men for the same work and to be able to have child care paid by their companies so that they might work. Some gains have been made for women in their quest for equal economic status with men. Many women who enjoyed interesting careers before they had children decide to spend more time, or full time, with their children when they finally start their families. Others need or want to continue their careers. But, if their marriages break down, custody is less likely to automatically go to the mother because both parents are working. Even if the mother tries to better herself by going to school and putting her child in day care, she might lose custody of her children, as happened in the recent highly publicized case in Michigan.
On the other hand, if a mother chooses career or any other lifestyle over remaining with her children as the custodial parent, society is shocked that she has relinquished this "natural" attachment. Why do these women make this choice?
Sometimes it's difficult for very young people, male or female, to handle the overwhelming burden of parenting young children alone as they work to earn a living. Some women, for the sake of their own personal growth, need the time and space that primary custody would simply preclude. A woman who is frustrated about her own life will not be as effective a mother as a woman who is fulfilled. Deciding to relinquish much of the daily child care responsibilities will benefit the children if they have a happy, self-assured mother and a father who can fulfill the primary, nurturing role.
Doreen got married in her freshman year of college. She had wanted to be a biologist, but she fell in love with her classmate, Brian. Within a year of getting married, she was pregnant with her first child. She loved the role of mother and left school. Doreen then had another child, and for the next five years devoted her time to caring for her children. Her marriage to Brian began to deteriorate when the children were spending long days at school and at after-school activities. A bright woman, Doreen was itching to do something more with her life. Meanwhile, Brian, an accountant, had moved his practice into their home. When Doreen's unhappiness finally reached the breaking point, she decided to go back to school and renew the life she had abandoned at the age of 19. She and Brian agreed that Brian would remain in their home with the children and that she would move to a local condominium. Brian had primary custody, but the children lived with Doreen on the weekends. She was able to pursue her new life and still have a close relationship with her children.
Just because a woman is not primary custodian in no way implies that she has given up her role as mother. No one would ever suggest that a father who doesn't have primary custody has given up being a father! What's important is maintaining the relationship with the children. As always, it's the relationship that counts, not the legal custody arrangement.
Special Considerations in High-Conflict Divorce
Harriet and Bill had been snapping at each other for years, the fire of passion that characterized their early romance long extinguished by the mundane realities of life. Harriet and Bill had two children, Gwen, 14, and Martin, 12.
Bill, manager of a health care facility, couldn't keep his eyes off Marion, a lab technician ten years his junior. After so many years of squelched sexuality in his marriage, Bill couldn't pass up the opportunity to engage Marion in conversation. What started out as a flirtation, ended up as a passionate romance.
A year later, Bill decided he wanted a permanent relationship with Marion. After much anguished decision-making about leaving his family, he decided to tell Harriet that he wanted a divorce.
Of course, Harriet was shocked. Despite the fact that she was dissatisfied with her relationship with Bill, she had grown used to the same old arguments they had about the sharing of responsibilities around the house, Bill's watching too much TV, and their lack of communication. Yet the thought of his moving out...to marry someone else!...made her heart race with anxiety.
A few weeks later, Bill decided it was time to work out the details of the divorce. He said he wanted joint custody of the children. The thought of giving up his role as decision-maker was too much to bear. Needless to say, Harriet, who had lost her husband to a younger woman and never wanted to speak to him again, could not imagine ever being able to sit down with Bill and make a mutual decision regarding the children.
In this situation, Harriet was probably right. As long as the animosity between Harriet and Bill was so great, it would not be possible to come to an agreement, and decisions do have to be made. If Harriet's and Bill's situation was like most other divorced parents whose conflict is ongoing, joint custody would result in more fighting and perennial visits to court.