How to Draft Custody and Visitation Provisions
I probably don’t need to tell you that, the more you cooperate with your child’s father, the more flexible he’ll be with you. When it comes to custody and visitation (probably two of the most emotionally charged issues in any divorce where children are involved), it can be tricky to negotiate a solution that takes into account both the best interests of the child as well as the interest each parent has in raising his or her child.
As you probably already know, different custodial arrangements are necessary and appropriate for a child at each stage of development. Determining what’s appropriate for your child is going to be an ongoing challenge, especially if you start off with a very young child. But what’s appropriate? Courts, attorneys, Guardians ad litem, and other experts disagree, and you and your child’s father probably disagree, too.
In most cases, I encourage my clients to enter their divorce with an already-established custody and visitation schedule. (To not have a schedule in place is probably the biggest mistake that parents can make with regards to custody. For more information on this topic, click here.) Still, how long is it reasonable to expect that your custodial arrangement will work? If your child is 17, it’s probably safe to say that you can make it until age 18 without too many issues. If your child is a breastfeeding infant, though, you’re in for a long road.
It’s possible to draft a custody and visitation schedule that expands as the child grows older. In many cases, this can help prevent messy disputes later, but it’s not foolproof. You should always remember that anything regarding custody, visitation, or child support is modifiable based on a material change in circumstances. (For more information on what constitutes a material change, click here.) So, even if you negotiate something now, you (or your child’s father) may wish to change something later and, provided that you can demonstrate that there has been a material change, the court will hear it.
Still, it’s a good idea to try to draft an agreement that allows custody and visitation to expand at certain predetermined times, so that both you and your child’s father know what to expect. While overnights may not be appropriate when the child is under two or three, you need to know that, at some point, overnight visitation should start happening. Your child’s father needs to know that, when the right time comes, you’ll promote it. This kind of attitude towards custody and visitation can help both of you keep your sanity and stay out of the courtroom.
Of course, these kinds of schedules aren’t easy to draft, especially since not everyone agrees on what’s appropriate. The best thing you can do is facilitate conversation between you and your child’s father, so that you can try to agree on your approach as parents. It’s also not a bad idea to meet with a custody attorney to get some feedback on what kind of schedule may be appropriate in your particular situation. For example, when we’re dealing with breastfeeding infants, we often craft visitation provisions that allow dad to come visit the child at mom’s house. That way, visitation for extended periods of time is possible, and the child can still stay close to mom. Later, of course, that time will expand to allow dad to have short outings with the child (without mom), and, eventually, to have overnights, weekends, and extended vacations.
For more information about drafting your custody and visitation agreement, call our office at (757) 425-5200.