The Biggest Mistake with Custody and Visitation

Posted on Mar 3, 2015 by Katie Carter

Whether you and your husband are currently getting along, you need to consider the possibility that, at one point or another, you’re going to disagree. If you have children together, chances that you will disagree increase exponentially. When I talk to women, they generally recognize this, and admit that they foresee some problems, especially with respect to custody and visitation, even after the final decree of divorce is entered.

Chances are, if you’re headed towards divorce, you and your husband have held some differing opinions during your marriage. Maybe those opinions were part of what led to the breakdown of the marriage. Still—those problems won’t go away and, at least as far as it pertains to raising your children, you’ll still have your share of disagreements.

Since my clients generally seem aware of this, I’m always surprised when they suggest not negotiating a specific visitation schedule with their husbands. They’ll say things like, “we’ll just figure it out,” or “I don’t want to be locked down to a specific schedule.”

What’s the alternative to spelling out a visitation schedule in your agreement? You can include a general provision that allows the non-custodial parent (in most cases, the dad) to have reasonable and liberal visitation upon reasonable notice to the custodial parent (in most cases, the mom).

“Reasonable and liberal” sounds good, but what does it actually mean? Who determines what “reasonable and liberal” means?

It’s a dangerous situation to be in, for sure, because it assumes that you and your husband are of one mind with respect to two things: (1) how often visitation should occur, and (2) how much notice the other parent should receive. Since you haven’t been of one mind prior to this time, it’s a bit much to expect that both of you will suddenly start to agree, especially since we’re dealing with your most important asset—your children.

Before you begin the divorce process, your relationship isn’t in a good place. After you begin the process, though, it generally takes an even steeper decline. Suddenly, rather than just fighting, one or both of you engages in the process of trying to place the blame for the dissolution of the marriage on the other. A complaint may be filed, in which one partner alleges that the other partner has done terrible things. A separation agreement may be drafted, in which one partner attempts to take more than his or her fair share of the other assets in equitable distribution. Long story short, a bad relationship gets worse, and the bonds of trust that weakened between the two of you over the years become completely eroded.

Even though custody and visitation are modifiable, you should always create a specific plan with your husband about how custody and visitation should occur. You should both contemplate how much visitation you’ll want to have and when exactly you would want that visitation to occur. Even though, at the moment that you’re drafting your agreement, it may seem easier to just agree to reasonable and liberal visitation, it will probably cause problems later—and those problems could be serious.

You should encourage your husband to sit down with you and discuss what kind of visitation he envisions. Does he want every other weekend? Overnights? Extra time in the summer to take a vacation? Time during the week? Or does he want something more? Does he envision a situation where the kids switch between the two of you each week? Or do you split the week in half? Does he want six months to himself? If you don’t ask now, you may be in for a rude awakening later. What he wants may seem ridiculous, but that’s another reason why it’s important to talk to him about it now. Talk to him about stability and what you think will be in their best interests. Talk to him about the daycare or school schedule and who will drop off and pick up. Talk to him about the various extracurricular activities that your kids are involved in.

Chances are, he’s concerned that you’ll take the kids most of the time and you’ll never let him see them. That’s why he’s agreeing to reasonable and liberal with reasonable notice to you—because that means that he can just call you up and let you know that he wants to take them, and you’ll have to let him. And you’re agreeing to reasonable and liberal because you’re thinking that, if he doesn’t give you enough notice or if what he’s suggesting as an activity isn’t something of which you approve, that you can just deny his visitation. You’re agreeing to this provision for the opposite reason—him, because he thinks he can use it to force you to allow him to have visitation, and you, because you’re thinking that you can use it to deny visitation when it’s less convenient for you. Because of the different situations you’re in, the way you read “reasonable and liberal” is different.

Believe me, it’s better to fight it out now than fight it out later. If you’re fighting about it now, you can work it out. You can include specific language in your separation agreement that sets forth your custody and visitation arrangement, and neither one of you will misunderstand or think that he or she will get more or less time.

If you start to fight about it later, he’s going to take you to court. He’s going to try to modify custody and visitation. You’re either going to have to retain an attorney to defend you, or you’re going to have to try to represent yourself—either way, it will cost you additional time, money, and stress.

But how can he do that? How can he bring you into court, when you followed the agreement? Well, since the agreement doesn’t specifically deal with how much time you should both be getting, your husband is going to argue that you didn’t allow him a reasonable amount of time and that the current visitation arrangement is not in the best interests of the child.

Remember the best interests of the child factors? We talked about them briefly before, so I’m not going to go into a long-winded discussion. I just want to remind you of factor number 6.

The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied access to or visitation with the child.

Your husband IS going to bring this factor up, and he is going to argue that he deserves more visitation—either that, or he’ll make a full-fledged motion for a change in custody.

If you don’t have a specific visitation schedule laid out in your agreement, you’re at risk. Whether you’ve unreasonably denied access to or visitation with the child is a question that will ultimately be left up to the judge. Without having specific language giving visitation at a specific time, you’re putting yourself in a risky situation. What if your husband keeps a detailed log of all the times he asked you to allow him visitation and you denied him? Even though you may have had a good reason for doing so, it’s not going to look good to a judge if there is a whole long list of times he asked in advance to have the children and you said no.

You should remember that, until your children turn 18, anything regarding custody, visitation and support is modifiable—which means that your husband can bring you into court over and over again, alleging a material change in circumstances. If the two of you aren’t on the same page from the beginning with respect to custody and visitation, you may be setting yourself up for more litigation and more uncertainty, which is the exact opposite of the point of a separation agreement. Take the time now, sit down with your husband, and come up with a detailed visitation arrangement. Don’t assume that you’ll agree on what’s reasonable and liberal later.