It is Henry Gornbein’s belief that in custody, as in all other aspects of your divorce, all decisions that you make should be fully informed for the sake of your children and own peace of mind in your ability to successfully co-parent with your former spouse. It is important to remember that labels are not as important as how you and the other parent are able to work together in your child’s best interest. Legal custody and physical custody, discussing your child or children with you — Henry S. Gornbein and Delia A. Miller will be mindful of what form of joint physical custody arrangement might be best for your family bearing in mind that the key is the best interests of your child or children.
There are different forms of custody, and you should understand the distinction made between physical custody and legal custody.
Legal custody refers to decision making involving your child or children; joint legal custody, therefore, means that decisions made concerning your child or children are done together with your former spouse. It means that both parents are to share in decision making authority over the important matters effecting the welfare of the child or children. These would include education, medical care, religious upbringing, elective medical procedures and issues involving psychological counseling, certain extracurricular activities and summer camps. The important concept behind joint legal custody is to make it clear that even in a divorce situation a child has two parents and there is to be communication encouraged between both parents with regard to issues effecting the children. Even with shared or joint legal custody, when one parent has physical custody that parent is responsible for the day-to-day decision making as it effects the health, welfare, and best interests of the child or children. In most cases, the parties agree or the Court will order that the parties have joint legal custody.
Physical custody refers to which parent is physically caring for the child or children on a day-to-day basis. Joint physical custody is an arrangement for both parents to share a great deal of time with and responsibility for the children. The actual parenting plan when parents share physical custody can be tailored to suit the needs and schedules of the children. Discussing your child or children with you, Henry S. Gornbein and Delia A. Miller will be mindful of what form of joint physical custody arrangement might be best for your family.
Based on his experience, for joint physical custody to truly work there must be excellent communication between the parents. The purest form of joint physical custody are situations where the children spend close to one-half the time with each parent. The parents may split the days of the week and alternate weekends, or alternate full weeks with mid-week parenting time for the other parent. Other arrangements that we have seen work for families with older children especially might be one where the parents live in the same school district so that the children can go from house to house on a fairly regular basis, perhaps as often as every other week or when they are not physically living there have the ability to spend time at the other parent’s home because of the close proximity. Other joint physical custody arrangements may include most school vacation times with the other parent. Here, the parent who has the children during the school year has primary physical custody, but there is also physical custody with the other parent. A very popular form of custody especially with younger children is called a 2-2-5 which means that the children will spend Monday and Tuesday with one parent Wednesday and Thursday with the other and alternate weekends so that they never go more than 5 days without seeing the other parent.
Again, when parents have the ability to communicate and to put the interests of their child or children first, there is no limit to the actual physical custody arrangement except for what will work for your family. We have even had cases where we rotated custody every four months. The children would be with one parent during the months of July, August, September and October, and the other parent in November, December, January and February and then March, April May and June with the first parent. The result is that the seasons differ from year to year and there is an equality of seasons over the years. In addition to this joint physical custodial arrangement, there is a specific parenting time schedule so that when the children are with one parent, they spend alternate weekends and one evening or more per week with the other parent. They also rotate or share all major holidays. Last but not least, there is another theory that is used by some judges. This is called the birds nest theory. Under this concept, the children live in the marital home and the parents take turns living in the home. This theory is very expensive; and in the few cases where we have seen this form of custody tried, if it works at all, it does not work for very long.
Whichever form of custody you decide to use, you and the other parent will also want to create a parenting time schedule, and decide how you will share school breaks, vacations and holidays. The goal should be to create a parenting plan that will work best for you and your family in transition. We will be able to advise you and work with you toward obtaining the result that will is best for you and your family in transition.