Creative Solutions to Custody for Holidays, Weekends, Travel, and More
When a husband and wife decide to divorce, their decisions rarely affect themselves alone. Though the divorce may be in the best interests of all parties, they are dismantling a nuclear family – that decision will ripple through the rest of their family and their friendships. Most importantly, it will affect the lives of their children. All decisions in a divorce will have some impact on children, but the most obvious and important are decisions about child custody.
To protect a child’s best interests in a divorce, you need to think creatively, check your emotions, be honest, and work with your soon-to-be-former partner. Even if the divorce has become acrimonious, you have an opportunity to do the right thing for your children. No matter what you think of your spouse now, the two of you are the people who know your children the best. Think ahead to potential problems: long weekends, holidays, and opportunities to travel. Who will get the children? Will your parenting schedule be flexible enough to adjust in these situations? Most importantly, what do the children want and need – and how can you provide for that?
- Legal Custody: This pertains to a parent’s access to school and medical records. New Jersey precedent prefers joint legal custody in all but extreme cases – for example, when there has been a history of child abuse.
- Physical Custody: This pertains to where the children will live. While it’s possible to have a 50/50 physical custody arrangement, you have to think hard about the feasibility of this option: complicating factors include the proximity of both parents’ residences, career obligations, etc. Generally in New Jersey there will be one “parent of primary residence” or “custodial parent” and one “parent of alternate residence,” allotted a certain amount of time with the children.
There are countless ways to split physical custody time up, accounting for holidays, summers, weekends, weekday dinners, and travel. While you have legitimate desires to be acknowledged in these decisions, it’s important here, as with all other decisions directly pertaining to the children, to put their interests first.
In mediation or other negotiations, parents have an opportunity to come to an agreement on custody. If left up to the courts, a judge will consider the following factors in deciding child custody:
- The parents’ willingness to accept custody.
- The needs of the child.
- The fitness of the parents – their ability to parent.
- The stability of each home environment.
- The parents’ ability to communicate and work together in matters relating to the child.
- Any history of unwillingness to allow visitation (except in cases of abuse).
- Any history of domestic violence.
- The child’s safety and the safety of one parent from physical abuse by the other parent.
- The child’s preference, if the child is old enough to make an intelligent decision.
- The interactions and relationship of the child with his or her parents and siblings.
- The child’s educational needs (and the value of continuity).
- The proximity of the parents’ homes.
- The extent and quality of each parent’s time spent with child before and after the separation.
- The parents’ employment responsibilities and how this might affect their ability to parent.
- The age and number of children.
When negotiating child custody, you need to think far into the future and be sure to bring up every concern. With your spouse, you should discuss:
- Your schedules and availability.
- Your expectations for the child’s religious upbringing and education.
- Your ideas for dividing weekends, holidays, and summers.
Depending on your situation, you may also want to discuss any plans to move out of the area or out of state.
Be prepared to give and take, but don’t think of this as bargaining or bartering (between the two of you). Instead, think of it as planning together toward a common goal: the upbringing of your children after the divorce.
Divorces disrupt family traditions established over years. You want to keep these traditions, but you have to share them with your former spouse. There are many creative ways to reach an agreement on how to share the holidays. Some are easier: Mom gets Mother’s Day and Dad gets Father’s Day, as well as the respective birthdays. But what about Christmas Eve and Christmas Day? The eight days of Hanukah? New Years Eve? How will both parents get to share in the experience of their children’s birthdays?
It’s unlikely that you’ll get exactly what you want when holidays are shared. And if you leave it up to them, New Jersey courts will almost always make parents alternate.
But alternating might not be the best for you. Different holidays carry different “weight” and significance depending on family traditions. It may also be best for the children to see both parents on the same day – or in some cases, for parents to see each other, with the children. The complications of sharing holidays should be an inducement for you to go to mediation for this part of the divorce process. Coming to a cordial agreement with your spouse will allow for more creative solutions, and be better for the children.
There are two concerns here. On one hand, one of the parents might be a flight risk. If you suspect that your spouse will flee the country with the children (which happens far too many times in New Jersey), you might notify your attorney immediately and the court at the beginning of litigation.
On the other hand, one parent might unreasonably try to obstruct the other’s legitimate intentions to take the children traveling out of the country. If you suspect your spouse might try to block your attempts to travel with your children, you must notify your attorney immediately.
If the children don’t have passports, the non-traveling parent’s consent to apply for them is necessary, unless you can get a judge to remove this restriction by demonstrating that the obstructionist spouse is being egregiously unreasonable.
Among the important considerations that a parent must discuss with an attorney are: If the children travel internationally, are there countries they are not to visit? How long may they be out of the country? How much prior notice does the other parent need before the children depart?
In too many cases, these issues are heavily litigated – both during and post-divorce. Address – and resolve – these important issues around international travel.
Tanya L. Freeman, Esq.
Tanya L. Freeman, Esq., a divorce lawyer in NJ and has earned a reputation for compassion, foresight, and thoroughness. If you’re concerned about child custody and want counsel from an attorney who can foresee issues and help you come to the creative, fair, and satisfying solution that’s best for your family, you can’t do better than Tanya Freeman.