When parents divorce - or separate if they were never married - they will need to make difficult decisions about the care and custody of their minor children. This article provides a basic overview of parenting plans and highlights some important factors to consider when creating them.
A "parenting plan" (sometimes called a "custody and visitation plan" or "custody schedule") is a document that spells out exactly how parents will share their parenting rights and responsibilities after a divorce or separation. To be enforceable, a parenting plan must be in writing, signed by both parents and approved by a judge.
Any parenting plan must address whether “legal custody” and “physical custody” will be shared jointly or divided in some other manner.
“Legal custody” refers to the right to make major decisions about a child's health, education and welfare. “Sole legal custody” means only one parent has the right to make such decisions. If both parents share the right and responsibility to make these decisions, they have “joint legal custody.”
“Physical custody” refers to the right and responsibility to care for and supervise the child. “Sole physical custody” means that a child resides with and is under the supervision of one parent; the other parent (the "non-custodial parent") may have the right to visitation if a court believes visitation is in the child's best interests. Parents have “joint physical custody” if the child lives with each parent for significant periods of time.
Agreeing how to split physical custody can be the most difficult part of this process. If you and your child's other parent can't agree on an arrangement, you'll end up in court where a judge will make custody decisions based on your child's best interests.
For more information on how judges make custody decisions, see Child Custody in California: Best Interests of the Child, by Susan Bishop.
Parents should make custody arrangements based on the best interests of their child - not their own needs. In other words, the primary concern in all custody decisions should always be the child's health, safety and welfare. Parents must consider their child's age and need for love, emotional support, stability and security. And generally speaking, children are better off when they have frequent and continuing contact with both parents (unless one or both parents have a history of abuse or other behavior that could endanger the child).
It's important to be realistic when drafting a custody plan; ask yourself which parent has been responsible for commitments in the past and who can fulfill them in the future. You'll need to chart out everyone's schedules (both parents and the child) and see who is available to handle certain activities.
Questions to consider include:
In addition, a parenting plan should spell out who gets the child – when and where – in enough detail so that it's easy to understand and enforce. You'll need to decide the following:
The devil is in the details, and this is never truer than when parents try to work out a custody schedule. However, with cooperation and compromise, many parents can and do implement successful parenting plans.
Arranging for the custody and care of very young children can be challenging because these little ones need 24-hour supervision and are completely dependent on others to ensure their basic needs are met. In addition, plans for young children must be revised frequently as their needs evolve rapidly; what worked for a 2-month-old isn't going to work once that child enters preschool.
Although both parents will probably want as much time as possible with their newborn or infant, the primary consideration must be how to best meet the baby's needs. Because infants aged 0-6 months require one or more naps during the day and frequent night feedings (which may include breastfeeding), the general consensus is that “overnights” (where the infant stays with the non-custodial parent or non-primary caretaker overnight) should be postponed until the child no longer requires night feedings. The non-custodial parent should be provided the opportunity to bond with the child and take part in the child's care, but not disrupt naps or feeding schedules. The Los Angeles Superior Court Family Court Services suggests a visitation schedule that allows the non-residential parent two hours a day, three days per week.
For babies aged 7-12 months, it's suggested that visits be bumped up to three hours a day, three days per week. Non-residential parents may also work up to a schedule that includes overnights, but only if it's in the child's best interests. When deciding whether overnights are appropriate, parents (and judges) should consider the child's needs, including night feedings, and keep in mind that routines are essential in this early stage of development.
In developing plans for children as they move out of infancy, from 13 to 36 months, parents should consider a variety of factors, such as consistency and daily routines, night feedings, sleep issues, bottle weaning, toilet training and adjustments to daycare or preschool. Parents should try to avoid a plan that frequently disrupts a child's routine.
The Los Angeles Superior court puts out an excellent resource on what factors to consider when creating parenting plans for young children from 0 months to 3 years of age. Click here to access this resource.
As children enter preschool and beyond, their needs will change yet again, so parenting plans should be revised. Click here for sample parenting plans for children between the ages of 3 and 18 (located at the bottom of the link).
In California, courts must consider the wishes of a child who is mature enough (the law describes this as “of sufficient age and capacity to reason”) to make an intelligent choice regarding custody or visitation. The law doesn't provide a specific age, but the older a child is, the more likely a judge is to consider the child's opinion - as long as it's sensible. For example, if a child says he doesn't want to go to dad's house because mom has a pool and video games, a judge probably won't give that opinion much weight.
When parents can't agree, they end up in court. Before a custody hearing or trial takes place, a judge will probably send the parents to mediation, where a neutral third-party mediator will try to help the parents resolve their dispute. If mediation doesn't work, the court will make a temporary custody and visitation order that's in the child's best interests. The temporary order will continue until the parents reach an agreement or a judge makes a final decision after a trial.
Parents can also ask the court to appoint a qualified child custody evaluator to conduct an investigation and evaluate how custody should be divided. The evaluator may interview the parent(s), the child, school personnel, other relatives and/or anyone else that's essential to a proper evaluation. The evaluator must give the court and parents a written report at least ten days before any custody hearing. Judges typically defer to custody evaluators and will adopt most (if not all) of their suggestions.
If you and your child's other parent are having trouble agreeing on a parenting plan or you have questions about custody and visitation, you should contact an experienced family law attorney for advice.