Custody and Visitation of a Newborn

Sometimes, custody problems are evident immediately. Even though you and your child’s father may not be able to make it work romantically, though, that doesn’t mean that you’re doomed to fail at parenthood, too. Even though it’s scary and emotionally charged to discuss the possibility of having anything less than complete and total custody, for most parents who aren’t married (or who don’t plan to stayIf we can agree on custody and visitation, what are our options? married), it’s a reality.

As you can probably imagine, though, different types of custody and visitation arrangements are appropriate at different points in a child’s development. Beyond that, too, different children function better in different types of arrangements than others. There’s really no right way or wrong way when it comes to custody, and, as long as you and your child’s father are able to talk things through, there’s no reason that you shouldn’t be able to create a customized custody and visitation plan that keeps everybody’s needs and priorities in mind—and allows your child to flourish—all at the same time.

If we can agree on custody and visitation, what are our options?

If you and your child’s father can talk about custody and visitation, the sky is the limit! There is a lot of room for the two of you to negotiate pretty much anything when it comes to the custody and visitation of your child. So long as you agree, you don’t even have to go to court. If you’re getting along and everything is working out just fine (of course, that doesn’t mean that you ALWAYS agree or that you share the same opinion the first time every time), there’s no reason you can’t work everything out between the two of you indefinitely—no court, no judge, no guardian ad litem required.

Sometimes, though, even couples who ultimately agree need a little help getting to that agreement. That doesn’t necessarily mean that they need to go to court, but sometimes lawyers or mediators are involved. If you and your child’s father can’t agree right away—that’s okay! It happens that way. After all, tensions are running high and, emotionally, it’s difficult for both of you to think of any kind of arrangement that keeps you away from your child part of the time. It’s especially difficult for parents of newborns.

As far as custody and visitation go, you have a lot of options. You can do it yourselves, and either agree orally or in writing. Keep in mind that oral agreements are difficult to enforce if your child’s father doesn’t do what he says he’s going to do, so relying too heavily on an oral agreement is probably not the best course of action—unless, of course, you and your child’s father typically resolve conflict this way, and you feel comfortable relying on his word. Alternatively, you can hire an attorney or a mediator to negotiate a custody arrangement on your behalf (which would almost certainly be in writing).

So, now that you know HOW you can reach an agreement (on your own, with a mediator, or with an attorney) and what the agreement will look like (either oral, which is not recommended, or written), how do you know what exactly to put in it?

The best custody and visitation arrangement deals with the child as he or she is now, and also allows for visitation and custody to change over time as the child grows and matures. Clearly, it’s not appropriate for the arrangement you work out for your newborn to carry through until the child turns 18. That’s just nuts! Likewise, you shouldn’t enter into an agreement that talks about summer vacation and spring break and dividing the school winter holiday when your child isn’t yet in school. Your arrangement should address where your child is now, and then allow for visitation to expand and change as the child gets older and different arrangements become appropriate.

How do you know what’s appropriate? Well, as the child’s parents, you probably have a better idea than anybody, but there are definitely guidelines that we use for kids at different ages. You may find them helpful, at least as you start out trying to have an idea of what you should be thinking when it comes to custody and visitation.

For most newborns, particularly nursing newborns, overnight visitation away from mom really isn’t appropriate. Since dad still has an interest in seeing and interacting with the child (but the opportunities for seeing and visiting with the child are limited, since we’re dealing with a newborn), we often see parents of newborns arranging frequent visits of shorter duration, as opposed to longer visits less often. If the parents are cordial, sometimes dad even exercises visitation at mom’s house—that way, traveling with baby isn’t necessary, and mom is on hand in case baby suddenly needs to nurse. Sometimes, these visits happen as often as every day, or even multiple times a day.

As the child grows, a different arrangement may be more appropriate. There’s no conventional wisdom regarding when a child is old enough to start overnights. I think that the best thing to do is let the child be your guide. In most cases, overnight visitation starts somewhere between the ages of 4-6, but it can certainly start earlier or later, if that’s what the parents choose. It’s probably best to start out with just one overnight at a time, and then gradually move up to weekends and longer periods of time as appropriate.

When the child goes to school, things will change again. You’ll have to start thinking about school holidays and vacations, and determining how to handle each break. Of course, holidays will always be an issue—who gets Christmas and who gets Thanksgiving?—but you’ll have to go from dealing with just the day itself, or the weekend of the holiday in question, to dealing with the entire winter holiday break.
Usually, parents figure out a way to split these times up between them. It’s pretty common, too, that, especially once the children are school aged, each parent gets a period of time each summer to take a vacation with the child. During that time (usually, a week or two), the other parent doesn’t have visitation. Both parents get the opportunity, though, to share this time with the child, if they elect to include such a provision in their agreement.

Custody can work however you want it to work. Some parents do different things—like week on, week off custody, or 4 days at one house, 3 at another. There really aren’t any rules, so you should feel free to craft a custody and visitation arrangement that takes everyone’s interests and priorities into account. If one of you works evenings or has to be in to the office super early, you can work your custody arrangement around that—so that the child’s other parent picks them up after school or drops them off at school in the mornings. There’s lots of flexibility here, and you should feel free to be creative.

When parents don’t live near each other, it definitely presents problems. Often, if that’s the case, having alternating weekends, or frequent, shorter-duration visits, just isn’t possible. In those cases, we typically see less frequent, longer visits. I’ve even seen it where one parent has the children during the school year and the other parent has them over the summer—yes, the entire summer! That’s pretty extreme, but…it happens. It’s definitely something worth thinking about if you’re considering relocating—on top of the fact that, if the court even allows relocation, the relocating parent is typically held responsible for the costs of visitation.

Still, in most cases, it’s realistic to expect that you and your child’s father will be able to work something out with respect to custody. Not only that, but it’s much better for the child.

What if we can’t agree on custody and visitation?

In some cases, mom and dad just can’t agree. It’s definitely not ideal, but it happens. In those cases, there’s really no choice but to leave custody and visitation up to the judge.

It’s not ideal mostly because you lose the flexibility you had when you were negotiating the agreement between yourselves. Judges aren’t going to take a ton of time to listen to you, consider your schedules, and come up with a long, complicated, specific custody arrangement. They’re going to apply something general—like shared physical custody—and expect you to make it work. A judge won’t baby you, or spend hours and hours going over your case to make sure to get it right. Simply put, the judge will listen to you, but briefly, decide, and move on. After all, he (or she, of course) has a lot of other cases on his (or her) docket that also require his attention. He doesn’t have the ability to spend hours and hours belaboring the finer points of your particular case.

If you can’t agree, the court will help you establish something with respect to custody and visitation. It may not be everything you dreamed of, but it will be something—so, in a lot of ways, it will help you lay the ground work for co-parenting with your child’s father. It will describe the type of relationship you have to have, and it will hopefully mean that you’re able to settle some of the disputes that have been driving you crazy. But it won’t be perfect, and you need to prepare for that.

Okay, so now that we’ve agreed, it’s all set in stone, right?

Nope. Custody and visitation are changeable, based on a material change in circumstances. If someone gets a promotion, moves, or remarries, custody and visitation can change. You can either go back to court and petition based on your material change, or, if you and your child’s father are getting along, you can renegotiate custody and visitation—again, either orally or in writing. (I recommend writing.)
Custody and visitation can be tricky, but it’s pretty important to get something hashed out as soon as possible—especially if things really aren’t going that well with your child’s father. Keep in mind that you’ll be working together to co-parent the child until…well, until pretty much forever. (Because, let’s face it, parenthood doesn’t end when the child turns 18, graduates college, gets married, has their own child, or really, at any other time. It’s forever.)

I definitely wish you the best of luck. If you need help negotiating or litigating custody and visitation, give our office a call at (757) 425-5200. We’re happy to help

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