What’s the Best Custody Arrangement for Children When Their Parents Divorce?

NY divorce and family mediator, Susan Ingram, explains legal and residential custody and how it's worked out in a family and child-centric manner during divorce mediation.

{Time to Read: 4 mins}

There’s certainly no one-size-fits-all when my divorcing couples are discussing the residential custody of their children and the parenting arrangements that reflect the specifics of how this will be handled. But before I proceed, I would like to clarify the concept of custody as it applies in divorce.

Basically, there are two types of custody: legal custody and residential custody (also referred to as physical custody).

Legal Custody

Except in very unusual circumstances (for example, where a parent might be abusive or have impaired judgment), parents jointly share the legal custody of their children. This means that they share the responsibility for all of the important decisions that need to be made for their kids. These are decisions regarding such things as medical treatment, choice of religion, and selection of the school a child will attend.

Residential Custody

The other type of custody is residential custody, which refers to the home where the children will spend more of their time. The parent who has the kids living with him or her more than 50% of the time would be considered the residential parent, and the other parent would be considered the non-residential parent. Furthermore, parents may work out arrangements where residential custody is essentially shared 50/50.

Which one of these arrangements is best for parents and their kids? It really needs to be based on a review of the entire family situation. Often couples already come to mediation with a general sense of how they’d like to do it. I help them understand their options and what makes the most sense for their particular family.

There are times when the choice is more clear-cut for choosing one parent over the other as the residential parent, especially if that parent has spent more time raising the children and will continue to do so. Or, with very young kids, it might make sense to have the children initially spend more of their time in one parent’s home.

I’ve had couples that have chosen to split custody of their children 50/50. For those arrangements to work well, I’ve found that the parents need to reside in close proximity to each other. Additionally, these equal custody situations work best when the parents don’t have a hostile attitude towards each other, but have been working together cooperatively during their separation.

Following the parents’ decision about residential custody, whether they’ve chosen one parent to be the residential parent or they’re splitting custody 50/50, I help all of my couples develop a detailed parenting plan. (See my prior article on Divorcing Couples and Parenting Plans for specific issues that are addressed in these plans.) I include each couple’s parenting plan in their separation/settlement agreement. The agreement also provides that they will return to mediation if circumstances change or new issues arise.

All in all, for the vast majority of couples, I believe that mediation provides the best setting to create and implement parenting plans that are family and child-centric.

Are you confused about the best parenting arrangements for your family? If so, feel free to leave a comment below or contact me directly.

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