As if divorce (or a breakup) weren’t crazy enough, when you add children into the mix, things can really get overwhelming. For most – if not all – moms, their biggest concern when it comes to a separation, divorce, or breakup is what will happen to the kids. A lot of moms tell me, especially early on in our conversations, that they’ll give up a lot of things that they’d otherwise be entitled to in order to get the kind of parenting arrangement they’re after.
I never recommend that – in fact, that’s one of the rules that I’d put in stone, if I were making a ’10 commandments of divorce and custody cases’.
Thou shalt not give up legal entitlements in order to get the custody and visitation arrangement you want!
Am I being dramatic? Well, sometimes, it’s true, but, really, I think this is that important! Why? Because, ultimately, custody, visitation, and child support are always modifiable based on a material change in circumstances.
But you know what’s not? Literally everything else. So, all the things that you’d give up – say, your portion of retirement, spousal support, an interest in the marital home – aren’t going to be modifiable later on, if you (or he) change your minds. But if you waive those things and then he changes his mind on custody and visitation? Well, it’s modifiable.
Would he be successful? Well, that’s another conversation entirely, but I’d definitely encourage you to think of it in two parts. One, there’s at least a chance that he’ll be successful and custody will change. And, two, if he DOES petition to modify custody, visitation, and/or child support, regardless of whether he’s actually successful and does change your parenting plan, he will (1) cost you money, (2) take away your time, (3) raise your blood pressure points, and (4) damage your ongoing coparenting relationship. The first part – whether he’ll actually be successful – is a possibility; the second set of consequences are a virtual certainty. And, in either case, you want to avoid it, right?
So, what do I recommend in terms of custody, visitation, and child support?
Like so many other things, the devil is in the details. A lot of people tell me, “oh, it’s fine, we’ll work it out later,” or “we prefer a parenting plan without a lot of details,” but the truth is that it’s these arrangements that are the most risky. You might think its difficult to go into a lot of detail and reach an agreement now, but I think you’ll find that it’s a WHOLE LOT harder later on, if you both go into your divorce or separation or breakup with different ideas about what your custody arrangement is going to look like. Hurt feelings, disappointment, concerns over parental alienation, and general lack of access to the kids could cause either or both of you to feel disenchanted with your arrangement earlier rather than later, causing you to go back to court.
And, you guessed it, (1) risking that your parenting plan will change in a way that you do not prefer, and (2) risking the time, money, blood pressure points, and overall bad blood that often results from litigation.
My advice? Get a very, very detailed plan in writing from the beginning – that way, you know you’re both going into it with the exact same expectations. Is it difficult? Yes. Is it worth it? Also yes.
I’m worried about my children staying in the same school. I’m going to do everything I can to keep the marital home, or to rent/buy a home nearby to keep them in the same schools. What if my child’s father wants to change that?
Moms almost ALWAYS have this conversation with me. And, as a mother of a soon-to-be school-aged kid who is involved in making a lot of these decisions now, I can completely understand! If your child is thriving, has a good relationship with his or her teacher, and is on a path that you feel is likely to lead him or her to success, it’s difficult to imagine changing it.
Kids thrive on routine, right? And if all the other things in their lives are changing, you want school to stay constant, right? You’re on this path, and you and your child’s father agreed to it before and you just want to make SURE that he can’t change his mind!
Well, I do get it. As a mother, I really do. But as a custody lawyer, I do want to prepare you for what could happen.
You could have primary physical custody. You could put your address in your agreement or court order for ‘school enrollment purposes’, even if you share 50/50 parenting time. You could put that you agree that the child(ren) will remain at their specific school for this specific period of time. You could put that you’ll both live in a certain school district, and specify that it is your intention that the children graduate high school in that district.
Custody, visitation, and child support are always modifiable based on a material change in circumstances.
Remember? Custody, visitation, and child support are always modifiable. Anything related to the children in modifiable, because custody and visitation decisions are made based on the ‘best interests of the child’ standards, and ‘the best interests of the child’ is not something that is static and unchanging.
You could write whatever you want in your agreement now, but it’ll be modifiable. So, he could change his mind, even if he signs something to that effect now. He could argue that staying there isn’t serving the child’s best interests. He could bring in teachers, therapists, developmental experts, whatever – to prove his point.
Obviously, you could make the opposite point. But, in either case, if you wind up going to court you will certainly expend time, money, and blood pressure points litigating the issue, and you may also find that a change will be ordered if the judge is convinced by your child’s father’s point of view.
I don’t say this to be discouraging, but instead to prepare you. You need to know what can and cannot be changed. I can’t change – no one can change – the fact that the law works this way, and is designed specifically to work this way. All parties involved, including your attorney, your child’s father’s attorney, the judge, the Guardian ad litem, etc., are all thinking that material changes can impact what’s in a child’s best interests and, as a result of that, your custody and visitation arrangement could change.
You should go into it knowing this. Craft the best arrangement you can now, but understand that it can change – whether because he changes his mind, or because you do. That’s why I say it’s a good idea to go into things with the same expectations, rather than hoping to work it out as you go and risking disappointment.
Disappointment can lead to litigation, so your best bet of avoiding that – of keeping your kids in the same school and being able to be the kind of parent you always wanted to be – is by coming up with a detailed custody arrangement from the get-go.
For more information or to request a copy of our custody book for Virginia moms, visit our website or give us a call at 757-425-5200.