I have often heard a parent say: “my child does not want to see his father (or mother) and I can’t make her.” Particularly with smaller children, this answer is not acceptable unless there is a compelling reason for the child’s reluctance. If the courts allowed a child to decide that she does not want to see the other parent, it would encourage a parent to turn the child’s affections against the other parent. If the resistance is extreme, the court will often have the child and the other parent meet together with a therapist to re-establish their relationship. Again, the underlying assumption is that it best for the child to have a relationship with both parents.
Shared Custody Schedules:
Typically, when parents share physical (or residential) custody of children they split time with the children by dividing the holidays, summer vacation and school days. Shared custody can only occur when both parents live near enough to the child’s school so that each parent can have overnight visits on school days. Therefore, enrolling the child in school nearer to one parent and far away from the other parent’s home will often eliminate the possibility of sharing residential custody.
Shared physical custody does not require a 50/50 split of the overnights (as stated above) 35% of the overnights in a years (128 overnights) are all that is required for shared physical custody. (The impact of shared physical custody vs. primary physical custody on child support will be discussed in the next section on child support.) Where the parties share physical custody equally there are usually two formulas for deciding which nights the children spend with each parent.
With older children (teenagers) parents tend to want to limit the back and forth transfers, therefore, week-on/week-off access is usually preferable. However, with younger children parents usually prefer that the children no go an entire week without spending time with one parent or the other. In these cases, a 5-2-5-2 access schedule is used.
Specifically, one parent will have the children on Monday and Tuesday evenings while the children will stay with the other parent on Wednesdays and Thursdays and the parents will alternate weekends (Fridays, Saturdays and Sundays) with the children. Thus one parent will have the children Wednesday afterschool until Monday morning one week and only on Wednesday and Thursday the next week. While the other parent will have the children Friday after school until Wednesday morning the next week and only Monday and Tuesday night the following week.
It works out to a 5-2-5-2 access schedule where the children never spend more than five nights away from their mother or father. Another advantage of this schedule is that the parties and the children always know where the children will be spending the night every week day. With a week-on/week-off schedule this changes every week.
Which state decides child custody?
Each state has enacted the Uniform Child Custody Jurisdiction Act which sets out guidelines for determining which state court will have jurisdiction to decide child custody. The child’s “home state” is the state where the child has lived for the last six months prior to filing the initial complaint for custody. The goal is to prevent one parent from taking the children and moving to a distant state where the other parent will have a difficult time contesting the custody complaint. Also, it is presumed that witnesses and other evidence that the court is likely to consider is more readily available in the child’s “home state”.