Child Custody

For a couple with children facing a divorce or separation, one or both parents worry about how the children will be affected. Over the years, many couples have tried to stay together for the sake of their children. Our society has learned that such a decision is not beneficial to the children. Children can sense hostility or resentment between their parents, no matter how hard the parents try to hide it from them. This works in the same way parents can sense very slight changes in their child behavior or demeanor.

In Colorado, when parents split from each other, they are expected to develop a written parenting plan, whether they are married or never married. A parenting plan defines who has the children when, who makes decisions about matters important to the children, how birthdays, holidays and vacations are handled, and so forth. The purpose of the parenting plan is to help prevent the parents from getting into conflict over the children later on. Parenting plans and changes to parenting plans can be developed with the help of a mediator: a neutral, third-party helping the parents negotiate with each other.

In Colorado, the term parenting time refers to what time the parent has with the child fulfilling their parenting responsibilities. The term child custody refers to which parent has responsibility for making major decisions about the child: education, medical, religious, extra-curricular activities, and the like. Both of these are important to the child's development.

The decision-making authority is what's at stake at this point, not the specific decision about any one of these elements. For example, which parent makes the decision about surgery? One parent may have specific medical training, and therefore be more equiped to make such a decision. The parents would agree in their parenting plan that this one parent has that authority. However, another set of parents facing the same issue, may have decided that they both want to participate in that decision; therefore they would have joint decision-making authority. They would weigh the pros and cons together, get a second opinion together, discuss the risks together, and collaborate to reach a joint decision.

Some divorced or separated parents carry a great deal of animosity or resentment toward each other for several years past their divorce. Within this group, some cannot imagine making a joint decision about anything, much less about their children. Other parents within this group can separate their "baggage" with the other parent and easily focus their energy on what is in the best interest of their children, and work with the other parent in joint decision-making. This isn't to imply one set of parents are any better than the other. It is only to point out that their are differences in capabilities of working together as parents, and parents who have limited capability of working together need to understand that about themselves, and negotiate with the other parent about which one will have that decision-making authority. When one parent has that authority, it doesn't necessarily shutout the other parent from the process. The parent with the authority can agree to listen to and carefully consider the opinion of the other parent before making the decision.

Some parents decide that they will split this authority for different elements. For example, Mom may have medical decision-making, Dad may have religious decision-making and they may agree to have joint decision-making on extra-curricular activities because they have agreed to equally split the cost of such activities. There may be other decisions, that in the eyes of one or both parents, are important (ie: summer camp), and it is good for them to define those additional elements and who has the authority for each of them.

Once a parenting plan is approved by the court, the parents are expected to carry that plan out. Parents are allowed to deviate from the parenting plan, as long as both parents are in agreement about the deviation. If they cannot agree about a deviation, they should stick with the plan.

But, stuff happens. Mom may have an out-of-town vacation opportunity, that occurs during her parenting time. Dad would take the children during that time period, and the parents would work out a way to get that time back for the children with Mom. In another year, the reverse may happen for Dad. Parents bend, flex, and stand in for each other to care for their children. If Dad couldn't accommodate Mom because he has to be out-of-town that same week for work, then Mom may have to pass on her vacation opportunity, if she cannot work something out with other caregivers, such as her parents or his parents. As long as the parents are able work out needed deviations from the plan, the courts don't want to know about it: they expect these things occur.

Over time, the developmental needs of the children change as they get older, or the circumstances of one or both parents' lives change, and a new and different parenting plan needs to be developed to accommodate the changes in life. We recommend that such new plans be filed with the court, so that the court can enforce the new plan if parents get into conflict over the new plan sometime in the future. The courts can only enforce what they have approved. We think it is helpful to the parents to know that their new plan has been approved by the court, as a means of preventing future conflict between the parents.

In our experience, once a plan for the children's care has been determined, the divorcing couple is in a somewhat less anxious state, so that they are more capable of working on the other elements of their divorce. Their decision-making around the other elements of divorce become easier to face.

For more information about mediation in family conflicts: www.confidentialmediation.net