Who Will take Care of the Children and Where Will They Live?

Cindy Best

Where will your children live and who will make decisions about them? These are the two major issues that you and the other parent must decide. This will depend on how far apart you live from each other, how old your children are, school hours, work hours, the care provider situation, the family support system and to some extent, the desires of the children. You are trying to do what is in your children?s best interests. This has been defined by statute in Arizona: A.R.S. 25-403 in the appendix.?

This statute is what the judge uses if you have to litigate legal or physical custody. You, as the parents, know this information intuitively if you are honest with yourselves and you place the needs of your children above your needs. You and your spouse can make agreements that are in the best interests of your children without court intervention.

Legal and Physical Custody

The courts do not always explain custody in terms of legal and physical custody, but it is easier to grasp when you understand the two separate concepts. One is legal custody, or who makes the legal decisions for your children. It is either joint or sole custody. In joint custody, you and the other parent will make all decisions together, after consultation. In sole legal custody, one parent has the legal right to make all decisions (see questionnaire at the end of this chapter).

Physical Custody and Parenting Time: Joint Physical Custody or Primary Physical Custody

Physical custody involves where the children live and when they see each parent. Again, it can be joint physical custody, in which the children live with each parent approximately the same amount of time. If one parent has primary legal custody, then the other parent has parenting time. This is a less than 50-50 parenting schedule. So, the two choices are either joint physical custody or primary physical custody, with parenting time for the other parent. Legal and physical custody can be handled in a variety of ways. You can have sole legal and joint physical custody. You can also have joint legal custody and one-parent, primary physical custody (worksheets appear at the end of the chapter).

Specific Issues

You and the other parent will need to determine how you share decision-making, how you decide, what to do when you cannot decide, where the kids live at what times, how to split holidays, who pays for the children, who pays for extra-curricular activities and who picks them up and drops them off. These details can be worked out with parenting plans and honest discussions between the parents, always keeping the needs of your children paramount in your negotiations. There are as many parenting plans as there are families. You can be creative for what works for your family, remembering that a good spirit and flexibility will ensure that your children do not become the collateral damage of your divorce.

Legal Custody Issues

Hypothetically, let?s say that your child needs braces. Can you get them, and who pays? What if you want your children to be raised Catholic, but your spouse refuses. What if you want your son to play football, but your spouse objects that it is on ?her time.? Your son needs medication for ADD, but your spouse refuses to allow it. These problems are almost infinite and can cost a great deal of anguish, anxiety and conflict if they are not dealt with upfront during the divorce. The last thing your child needs is a decade or so of conflict. The divorce is difficult enough, and chronic conflict can have a lifelong, devastating impact. So, how do you resolve these issues?

Legal custody is the right of a parent to make important decisions regarding education, health, recreation and religion. Joint legal custody leaves these decisions up to the parents together. That presents the inevitable problem of who gets to break the tie? You must put in a tiebreaker provision in your parenting agreement. For instance, you could mediate all ties, before going back to court. Your mediator in this situation can be an attorney, pastor, grandparent, social worker, counselor, psychologist or anyone else who can help you. You could decide that one parent can break the tie in two matters and the other parent breaks the tie in the other two areas. You could attempt to negotiate as many of these issues during the divorce as you can anticipate.

If you know your child will need braces, plan for it now and negotiate it now, before anger or other future partners muddy up the water. Let?s say that you know your child will play soccer and it will be played on Saturdays. Saturdays are both Mom?s and Dad?s parenting time on every other weekend. You can write into your agreement that sports that fall on the non-residential parent?s parenting time can be made up by agreement of the parties. Soccer that falls on both parents? time alternately, when the parents have 50-50 parenting time, will not be a reason to keep the child out of sports and there will be no make-up time. If you know that one grandparent always takes the kids to the lake in the summer for a week, write that into the agreement now. But do not put your child in the middle. We repeat: do not put your child in the middle. EVER!

Best Law Firm has a joint parenting agreement that will help anticipate these issues. You should attach such an agreement to your decree, because it is required by the court. (Please see the partial example in this book or our website for document drafting services, where we can draft a joint parenting agreement specifically tailored to your family). We can draft a parenting agreement for a flat fee, either implementing what you and your partner have agreed to, or what has been mutually negotiated through mediation with our attorneys.

The more you can decide now and put in writing during the divorce process, the less chance you have of future disagreements. The last thing in the world you want is to argue over every decision about every sport or every activity your child ever participates in. Remember, it is not ?your? parenting time, it is your child?s time and his or her childhood. You will have a much better relationship with your child if you are not thwarting his or her every move, just because it is inconvenient for you.

Assistance with Parenting Plans and Agreements

Our experienced attorneys at Best Law can help you and your spouse draft a negotiated parenting and custody agreement. We can provide insight and anticipate future problems. We provide this service at an hourly rate and provide you with a court-approved form at the conclusion that can be filed with the court, along with your decree.

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