Parenting Schedules

Cracking the Custody Code Chapter 8

Courts generally favor joint physical custody as the best way to ensure that children have frequent, meaningful contact with each parent. Joint custody requires that each parent be fit to care for a child, have the flexibility and availability to act as a primary caretaker (at least part-time), and have the resources to provide a safe and appropriate home for a child (or secure child support to do so).

Once you have met these threshold requirements, the question becomes, how will the parenting schedule work? Here are a few basic questions to ask:

• How many days a week/month can each parent operate as a primary caretaker?
• Are there any days of the week when each parent is consistently unavailable?
• How many consecutive days can each parent handle the kids before you need a break?
• How many consecutive days can the children be away from each parent before separation anxiety sets in?
• Who was the primary caretaker during the marriage?
• What was the division of responsibility between the parents?

There are several factors that influence the answers to these questions, such as:

• Any special needs the children may have.
• The ages of the children and what schedule is developmentally appropriate for each child.
• The demands of each parent’s career.
• The number of children.
• Each parent’s current skill/comfort level acting as the primary caretaker.
• How emotionally bonded is each parent to each child.

It is important to be clear-eyed and honest about the strengths and limitations of each parent, as well as the best interests of each child. For some families, rotating short stays with each parent gives the children a sense of cohesion and normality since there are not too many days without seeing one of the parents. For other families, frequent changes of residence are disruptive, and longer stays before an exchange provide greater stability. Again, the best interest of the child may require analysis of what is developmentally appropriate; a good schedule for an infant will likely be quite different than what is best for a teenager.

Because there is an odd number of days in each week, and most months, achieving a 50-50 split of overnights can be challenging. If an equal division is what the parents are trying to achieve, outlined below are a few model schedules that may be appropriate:

• 2-2-3 Rotation — For example, where one parent has every Monday and Tuesday night with the children, the other parent has every Wednesday and Thursday night, and the parents alternate weekends, from Friday after school to Monday morning. This plan offers a model of shorter stays with frequent exchanges. The virtue of this schedule is that the three-day weekends alternate every week, allowing each parent an equal distribution of quality time with the children. Schedules with frequent exchanges work well when parents live close to each other, so drop-offs or pick-ups require little effort. It might also work better for younger children, provided the frequent exchanges are not stressful and disruptive.
• 2-2-5-5 Rotation — Here, we alternate short and long visits between the children and their parents.
• 3-3-4-4 Rotation — This is an intermediate-length schedule. It features fewer exchanges, and visits are lengthy enough for children to settle in, but not so lengthy that they feel separated from the other parent. Instead of rotating whole weekends, parents rotate Saturdays with their children. In this schedule, the first parent will be with the children overnight on Monday, Tuesday, and Wednesday, and the second parent will be with the children on Thursday, Friday, and Saturday overnight. At that point, the first parent will be with the children overnight on Monday, Tuesday, Wednesday, and Thursday, and the second parent will be with the children on Friday, Saturday, Sunday, and Monday overnight. The schedule would then revert to three consecutive overnights for each parent.
• Alternating Weeks — Under this parenting schedule, the children reside with one parent for a full week, then alternate to the other parent for another week. You can choose the day when it is easiest to make the exchange, such as a Friday, Saturday morning, or Sunday evening. Since a full week is a long stretch, it is important that the children are completely set up at each home with a wardrobe, toys, electronics, school, and other relevant supplies so that the exchanges do not feel like a major move. These long stays are generally more appropriate for older, more mature children who can tolerate the extended absence from their other parent.
• Alternating Weeks with Midweek Visits — This parenting plan ensures that children do not spend an entire week without spending meaningful time with the other parent. This schedule requires a level of flexibility to ensure a visit will take place, especially with older children who might be busy with extracurricular activities.
• Alternating Weeks with Midweek Overnight — An overnight is often easier to schedule than a dinner visit. Yet this plan still requires flexibility because the best day for an overnight might change week to week depending on the schedules of the parents and the children.

Parenting schedules should be dynamic and are often modified as the children age and their needs evolve. The parenting schedules must also accommodate other important relationships, such as grandparents, aunts, uncles, and cousins, where relevant. The parents must also consider schedules for holidays, vacations, birthdays, and other special events.

Parents must also decide whether their children will have any input in the schedule. Teenagers and tweenagers are often eager to exercise autonomy and can resist scheduling mandates imposed upon them by their parents. It is often easier to get their buy-in when they feel some level of ownership over the process. Listening to their input and accommodating them where possible can go a long way to improving domestic tranquility.

Parents may also find that children of different ages thrive better under different custody schedules. For example, a high-school freshman might find that an alternating-weeks system is more predictable and less disruptive to their busy school and extracurricular schedule. A fifth-grader may be more comfortable with shorter visits to feel more emotionally connected to each parent.

Custody Schedule Considerations by Age

Because children of different ages may adjust better to different custody schedules, parents should be open to revising their custody schedule as their children grow. Keeping pace with the children’s development is one of the primary tasks of parenting. It is important for parents to communicate with each other so that they are both tracking their children’s emotional and physical development. It is recommended that the parents work with a knowledgeable child therapist trained in addressing children of divorce and relevant parenting schedules.

The issue of overnights for children under four years old has long been a source of contention between warring parents. Psychologists Marsha Kline Pruett, Jennifer E. McIntosh, and Joan B. Kelly collaborated to address the arguments polarizing the field surrounding the care of infants and very young children in households where the parents no longer reside together. In their research, they concluded that ensuring the children develop proper and secure attachments to their parents is fundamental and should guide scheduling decisions¹.

Here are some thoughts on the best basic schedules for children of various ages.

Infants — Babies, from birth to eighteen months, make great demands on their primary caretakers, especially if the baby is being breastfed. As a result, courts have traditionally held to the “tender years” doctrine, ruling in favor of sole physical custody for the mother. However, such a ruling could interfere with the father's ability to experience their child's wondrous and rapid growth. More recently, some courts favor joint physical custody in circumstances where a father can meet the infant’s needs.

To develop in a healthy manner, infants require consistency and reliable routines regarding sleeping, care upon waking, napping, and eating. The environment for the baby should be as similar as possible in both residences as the infant is brought back and forth between the homes.

Infants also require frequent contact with each parent to bond with each of them in a healthy manner. Infants start to recognize and bond with specific people at age six-months and can, at that age, become anxious when exposed to strangers. If a parent does not establish a healthy emotional bond with the child before that point, exercising too much parenting time can create stress for the parent and the child, until the child reaches the age of a toddler, when the infant’s anxiety can be expected to subside.

Infants thrive in a placid environment and react negatively to caretakers who are anxious, stressed-out, and angry. Parents should monitor their emotional state to ensure that the infant’s environment is warm and affectionate. Infants have “emotional memory,” which means they will recall being frightened. This can be an impediment to bonding with an adult who has made them feel insecure.

As infants develop motor skills, they will soon crawl, stand, walk, and climb. They start to communicate by babbling and responding to certain words and phrases and begin to display a range of emotions. Their development requires continuous adjustments to their care, so parents must communicate about the changes they observe and any developmental milestones that may occur.

Generally, parents of infants should agree to short parenting time intervals of two or three days at a time so the infant can develop bonds with both parents. If the infant is breastfeeding, this must be integrated into the schedule. This can mean sole physical custody for the mother with frequent, perhaps daily, visits for the father. Other options include drop-offs of pumped breast milk for bottle-feeding or overnight visits by the mother during the father’s parenting time.

Toddlers — Children are considered toddlers from about eighteen months to three years of age, a stage sometimes called “The Terrible Twos.” Though this stage only lasts about six months, it is often a challenging time for parents. This challenge is often exacerbated when the parents reside apart.

What makes “the twos” so terrible? For one thing, toddlers form strong attachments to people and objects, and they are easily upset when separated from either. Parents should remember to ensure that security objects, such as toys and blankets, are part of the parenting transitions.

From these facts, we can glean two important points. Toddlers do best with frequent visits with each parent to soothe any separation anxiety that a toddler may feel, and they do best with environments that are familiar. The parent who is transitioning away from their parenting time should consider spending some time at the other parent's home during the transition, and to leave as casually as possible, so as not to alarm the child.

Like infants, toddlers are sensitive to the emotions that adults display around them. Parents should make every effort to be cordial to one another when their toddler is present. Also, like babies, toddlers develop quickly, so parents must try to keep ahead of the curve. You must be alert for changes in the toddler’s physical skills and innate curiosity. Parents should childproof both homes to ensure their toddler’s safety from a range of hazards.

A common schedule for a toddler includes, at most, three-day parenting blocks with each parent. During these blocks, telephone and video access may be used to soothe an anxious toddler, where appropriate. Video chats require the parent or caretaker who is with the child to facilitate access. That parent or caretaker may also place the child on his lap while the visiting parent reads to or speaks with the toddler. Video and telephone access involving toddlers generally do not last for long durations, and the visiting parent usually does not have privacy with the child because the facilitation required from the other parent to make the access successful prevents private conversation.

Primary and middle school — Children who attend school for a full day are generally better able to tolerate various expanded access schedules since their world has expanded to encompass school, friends, and activities. Further, school gives children an added sense of stability because of its set daily schedules and seasonal calendars. Further, children are exposed to different adults with varied teaching styles, so they begin to understand why parents might manage their homes and relate to their children differently. As children mature, they become more adaptable, so parents can be more flexible with their custodial schedule.

On the other hand, a child’s expanded world can also complicate a parenting schedule, since activities such as sports, dance, music, theater, playdates, science projects, debate and chess tournaments, spelling bees, etc. can make scheduling more complicated. Fortunately, at this age, children can better engage with their parents by telephone and video chat. In addition to the children’s schedule, schools also take time from parents through parent-teacher conferences and parent-association activities and meetings. Also, both the children and parents may be involved in completing complex and time-consuming homework assignments.

Negotiating Custody of—and with—Teenagers

The teenage years are the threshold of adulthood. Teenagers will, and should, challenge the adults around them to provide reason-based explanations for why rules are constructed the way they are. Teenagers are notoriously uncooperative with regimens they do not understand or have some ownership over. Their battle cry of “That’s not fair!” has resounded through the halls of many a home, followed by thunderous stamping of feet leading to the earth-shattering slam of a bedroom door. But parents should not take lightly their teens’ rebellion against perceived injustice, which can lead them to act out negatively with potentially disastrous consequences. Often, a worse situation involves a teen who does not push back but stews in silence, so the parents never suspect that unspoken resentments are causing the child to engage in troubling behavior outside of the home.

Developmentally, the teenage years are almost always challenging for children and their parents. This is the age when children form a sense of themselves within the context of the larger world. They become sensitive (perhaps overly so) to social structures in society, especially at school, and may struggle to find a place to comfortably fit in. There is a natural separation from parents, which is necessary to gain personal autonomy, but often means that friends and acquaintances, of whom you might not thoroughly approve, gain undue influence. In this age of social media saturation, parents must be vigilant about the forces shaping their teenager’s view of the world and of themselves while, at the same time, curbing the urge to encroach too heavily on their child’s autonomy.

Statistics demonstrate that teenage girls tend to mature faster than boys² and handle responsibilities more adroitly. For both girls and boys, physical and emotional changes can be overwhelming, and parents must respond patiently when their teenagers act emotionally or in a manner that may differ from previous actions. Parents should be mindful of responding too rigidly or punitively to emotional outbursts or changes that their children may not be, as yet, emotionally equipped to handle.

For all these reasons, it is important that teenagers have some agency over parenting time schedules. Ideally, the parents should sit together with their child to discuss an age-appropriate schedule that works for everyone. When teenagers feel they are being heard and that expressing their opinions has an impact on discussions, they are more likely to cooperate, even if they are not one hundred percent satisfied with the outcome. Outlined below are a few tips for approaching the subject of custody and parenting time with teenagers:

• The parents should meet to formulate the proposed schedule.
• The parents should explain that custody matters are decided based upon the 'child's best interest' standard and that both parents intend to be guided by that principle as well.
• Parents should ask their teenager to explain what the teenager believes to be in his best interest.
• Parents should discuss the various models of parenting time that they are considering.
• Parents should match the child’s 'best interest' elements to the appropriate model.
• Parents should attempt to avoid dragging personality issues into the discussion. If a parent objects to the other parent’s “parenting style,” that parent should try to express his concerns objectively regarding their child’s needs and whether the environment the other parent will provide will meet those needs.
• Have the child repeat this process alone with each parent separately.
• Once the parents reach an agreement, they should present the proposed schedule to their teenager. The parents should be prepared to offer a reasoned explanation regarding the basis of any decision that goes against the child’s expressed desires. They should present a united front to their teenager so that the child cannot play one parent against the other.
• The parents should ensure and make it clear that the schedule can be modified if changes are in the child’s best interest.

If all goes well, the teenager will buy in on a working schedule that the parents can present to the court for its approval.

When New York Family Courts Inquire About a Child’s Preference

If there is an impasse in custody negotiations and mediation does not produce an agreement, the parents have to litigate the issue in court. Each parent will present their competing custody schedules to the judge, who will consider all relevant factors when deciding on a plan in the best interest of the child. A child's thoughts on the matter may be among the relevant factors.

New York Domestic Relations Law does not state a specific age at which the court must consider a child’s preference about custody matters. Rather, the Family Court judge can exercise discretion to decide whether a particular child’s opinion should be weighed in the balance. The older a child is, the more likely a judge will conclude that their opinion matters. However, judges are never required to ask about a child’s preference. Yet, if a judge wants to inquire, the court schedules an in-camera interview.

In-camera does not mean a video recording; it is a Latin phrase meaning “in the room,” rather than in open court. This is an opportunity for the judge to talk to the child in private, in the relaxed atmosphere of his or her office, known as the judge’s chambers. This is done to spare the child any emotional turmoil from having to speak in the courtroom. The only people present are the judge, the child, a court reporter, and the court-appointed child’s attorney.

The court takes measures to ensure confidentiality so the child can speak freely without fear of a parent’s disapproval or hurt feelings. The court reporter records the session, but the court seals that record, so it is hidden from the parents and their attorneys. However, it can be unsealed for the appellate court should a party choose to appeal the lower or trial court’s decision regarding custody. Most judges take a moment to break the ice with the child, chatting casually, so the child relaxes, and the judge learns a bit about them. Eventually, they get down to the nitty-gritty, focusing on where and how they would like to live and how they would like to spend time with their parents. The judge can then assess how much weight to give the child’s preferences.

A judge can often tell when a parent has coached a child to support his or her position regarding parental access. As such, it is recommended that parents steer far away from trying to influence their child’s opinion so they can then repeat that position to the judge. It is counterproductive and will come back to haunt the parent who tried to inappropriately influence the child.

How to Prepare Your Child for an In-Camera Interview

This is a tough part of the process because it requires the parents to let go and trust their child’s best instincts. The parents cannot attempt to control what the child will say. Remember, both the Family Court judge and the child’s attorney do this for a living. They know when a child’s statements are programmed and rehearsed. Any judge worthy of a robe and gavel is going to be able to elicit a child’s true feelings or at least determine that what they are saying is not coming from their own heart. If a parent has attempted to bribe the child, coach them about what to say or hint at punishment if they do not align with that parent, it is likely to come out in the discussion with the judge, reflecting negatively on that parent.

Here, briefly, is how we recommend that parents handle their child’s in-camera interview:

• Keep it casual. Parents should not intimate by words or actions that any matter of great importance depends on the child’s testimony. Parents should tell the child that the judge would like to have a talk and elicit their opinion.
• Parents should frame the meeting positively as an opportunity for the child to express their thoughts and feelings, so the judge can add them to the mix when deciding parenting issues.
• Parents should give the child time to prepare for the meeting, inform them in advance, and encourage them to write notes of their thoughts.
• Parents should emphasize the confidentiality of the discussion with the court and reassure the child that the parents will not have access to the transcript of the proceeding and will not ask the child what was said.
• Encourage the child to speak freely with their attorney in preparation for the meeting, again emphasizing the confidentiality of those discussions.

The role of parents is not to conspire with their child to achieve an outcome. The parents’ job is to spare the child any emotional turmoil associated with discussing their intimate feelings with strangers.

At the end of the process, the parents will have a court-ordered custody plan, either by trial or by agreement. It will likely not be a perfect plan from each parent’s point of view, but the parents should not make their child a sounding board for their respective discontent or give oxygen to their gripes. As a parent, it is important to model compliance with the plan.

Parenting Schedules Spanning Different Jurisdictions

When Parents Reside in Different States

 

When parents live in different states, or even at great distances from one another within the same state, frequent exchanges are prohibitively disruptive. It is generally best for school-aged children to spend the school year with one parent and spend vacations and holidays with the other parent. The downside to this schedule is that the first parent is with the children during the intense “work times,” and the other parent visits with them during the freer “fun times.” An interstate schedule requires detailed planning to achieve a greater balance of quality time for each parent.

When Parents Reside in Different Countries

With advances in transportation and communication, the world has become much smaller, except when your child is on the other side of it. In most cases, the court of the country where the child “habitually resides” has jurisdiction over the issue of custody. In the event of an international custody dispute, parents must be ready to address the worst-case scenario: the abduction of the child to a foreign country. As a safeguard to prevent this from happening, U.S. passport applications for children require the approval of both parents. If the children have passports, it is recommended that the passports be kept in a secure location so neither parent can use them to abduct the child. It is also possible to enroll the child in the United States Customs and Border Protection’s Prevent Abduction program. This creates an automatic alert that allows the Customs Services to intercept the child at the points of departure before the child leaves the country. These steps are necessary, because if a foreign national parent absconds with a child to their home country, the process for recovering your child can be grueling, time-consuming, and expensive.

The Hague Convention on the Civil Aspects of International Child Abduction is the treatise that applies to retrieve abducted children. The Hague Convention applies to all countries that are signatories to the treatise. Various state and federal courts in the United States have jurisdiction to address abduction matters that fall within the purview of the Hague Convention. An application to return a child to the United States from abroad is commonly brought on the grounds that the United States is the “country of habitual residence.” A Hague Convention filing is not a custody suit; the foreign court does not entertain arguments about “the best interests of the child.” It simply inquires as to whether a child under the age of sixteen was unlawfully removed from the “country of habitual residence” in violation of the other parent’s custody rights. However, the abducting parent can offer defenses, such as danger or harm to the child if returned to the “habitual” country.

In the event that the parents agree that the child can reside abroad, an international parenting plan often resembles an interstate plan in that the child may attend school in one country and reside in another country during summers and holidays. However, since travel overseas is generally more costly and time-consuming than traveling to another state, financial considerations can limit the parents’ ability to transition from one country to another. It might also not be in the children’s best interests to uproot them for the entire summer. This is another area where families need to be flexible and responsive to their unique family circumstances when crafting visitation agreements.

Some of the factors parents should consider when entertaining international parenting plans include:

• Whether the children are sufficiently mature to spend extended time away from a parent and their home country
• The quality of care the children will receive in the foreign country
• Safety concerns in the foreign country

International plans are more appropriate for teenagers, who are usually sufficiently mature to tolerate extended times away from a primary caregiver. For younger children, short visits to another country to visit a parent may be more appropriate. Alternatively, the parent who resides abroad may want to travel to the United States frequently to visit with their child.

Sorting out Siblings: Split Custody and Blended Families

Parenting plans become more complex when more than one child is involved. If the children are close in age, it is easier to maintain the same parenting schedule. When ages differ substantially—three or more years—they may have different developmental needs. For example, a twelve-year-old child may thrive on a 2-2-5-5 schedule, while a seven-year-old child may succeed on a 2-2-3 rotating schedule. Parents must determine if it is better to maintain the same schedule when children have varied needs, or to apply different schedules to siblings with differential developmental needs.

Parents may decide, for example, that a twelve-year-old boy is better off spending most of the time with his father, while his four-year-old sister should be closer to her mother. The parents may feel that their busy schedule precludes them from exercising custody of both children at once for long intervals. In that case, some form of overlapping split custody might be a viable option. It should be noted that siblings form strong bonds and can suffer from anxiety when separated from each other. This should also be a consideration when drafting parenting schedules involving more than one child.

In blended families that are composed of half-siblings and stepsiblings, New York law holds that half-siblings have the same rights as full siblings when it comes to having the legal right to visit with each other. Siblings even have the right to petition the court for a custody plan that permits frequent, meaningful contact with each other. While stepsiblings do not have the same rights, it is important to note that children will often bond with one another without regard to whether they are siblings, half-siblings, or stepsiblings. These sibling relationships must be considered by the parents when they craft parenting schedules that are in the best interests of the all of the children in the family.

For all of these scenarios, different parents can arrive at different conclusions about what type of parenting schedule is best for their children. It’s important that parents have the freedom to craft an individual plan that meets their family’s needs. They should consult with a range of experts, including child psychologists and family law attorneys, to understand the pros and cons of their various options.

End of Excerpt

Footnotes:

1. Pruett, M. K., McIntosh, J. E., & Kelly, J. B. (2014). Parental separation and overnight care of young children, part i: Consensus through theoretical and empirical integration. Family Court Review, 52(2), 240–255. https://doi.org/10.1111/fcre.12087
2. Sussex Publishers. (n.d.). Scientists identify why girls often mature faster than boys. Psychology Today. https://www.psychologytoday.com/us/blog/the-athletes-way/201312/scientists-identify-why-girls-often-mature-faster-boys