When it comes to custody and parenting time, our judges are tasked with the responsibility to act in the best interest of the minor children whose well-being is often dependent on the outcome of their parents’ custody disputes. There has been a movement in our courts toward the presumption that, if a couple is getting divorced, they should share time with their children, equally. Beginning a divorce action with an award of equal time to each parent gives little to no consideration for what is truly best for the child.
What adds to the problem is the fact that, after a divorce action is filed, the judge is not required to immediately perform a lengthy legal analysis about what is best for the children, based on their unique situation, before granting the parties a 50/50 parenting time schedule, pending a trial. Trial will usually occur many months down the road, so, in the interim, the judge can make temporary parenting plans, based solely on arguments made by each parent’s attorney, without considering the legitimacy of the claims presented.
Is this system truly in our children’s best interest? I think not. Before a judge renders an interim parenting plan, courts should be mandated to follow criteria designed to determine what is best for a child. There is no room for a “one size fits all” solution, here, if we truly want to do what’s best for our children. We need to approach this serious issue from a child-centric perspective. Taking a child-centric perspective means putting our child’s needs above our own. This is not to say that a 50/50 parenting schedule is always contradictory to a child-centric approach, if the factors at hand show that equal parenting time for the children is in their best interest.
We need to remember that divorce is traumatic for children. Children are the powerless bystanders to the demise of their parents’ relationship. Divorce is devastating for children and we need to acknowledge this fact and let our children express their feelings and grieve. Children want to spend quality time with both of their parents. The amount of time depends on the age of the child. Older children, for instance, might be more concerned with friends than with family, but I can promise you that children of all ages do not want to be passed between 2 households like ping pong balls. Children feel most comfortable with one home base.
I can’t tell you how many cases I come across where a workaholic parent, who spends little time with their children during the marriage, vows to magically change his or her schedule to be available for their children, half of the time, now that a divorce action is filed. This type of parent is not taking a child-centric approach to parenting, at all. This parent feels the need to win and will even hire a nanny or a personal assistant just to spite their more available, soon-to-be-ex, spouse. So, who loses here? Obviously the children. But courts are increasingly turning toward this easy fix of splitting time equally, despite the parenting arrangement that existed before the case was filed.
Interim parenting plans should be determined by the following criteria:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
A judge must make a determination on each of these factors after a trial, so the same factors should also be applied to interim parenting time plans.
In sum, taking a case by case approach, which considers the needs of the children in each unique case, is the best policy to ensure the wellbeing of our children after their parents decide to divorce.