Shared Custody and Parenting Time

Twenty years ago the typical parenting schedule went like this: mom had the children nearly all of the time and dad got the kids every other weekend and Wednesday evening for dinner. In fact this arrangement was so common it was the focal point of the 1995 movie Bye, Bye Love with Paul Reiser, Matthew Modine and Randy Quaid. 
One of the movie’s recurring themes involves the fathers all picking up their children at McDonald’s, and returning them to their mothers at the end of parenting time.

Slowly this trend has been changing. It is becoming more common for parents to have shared residential custody, sometimes referred to as a 50-50 plan. In these arrangements the parents adopt a schedule whereby each parent plays an extensive role in their children’s lives. Common schedules include a week off week on rotation, or a plan where one parent has Monday and Wednesday nights, the other parent has Tuesday and Thursday nights, and they alternate weekends (sometimes this is done with one parent having Monday and Tuesday and the other having Wednesday and Thursday).

Although these plans require a great deal of coordination, and cooperation, between the parents they do maximize the role of each parent. For all the potential benefits shared parenting plans offer they are still not without concerns. Recently there has been more attention paid to the child’s psychological development as it relates to the parenting schedule. Specifically there has been a greater focus on the drawbacks of shared custody with very young children. The goal of any parenting schedule is to protect the child’s best interests. It is relevant, therefore, to consider the impact of the parenting schedule on the child’s psychological development.

Parenting time for infants (less than eighteen months)

Infants do not understand time the same way adults and older children understand it. Very young children have not developed the concept of object permanence (i.e. an object does not cease to exist when it is out of sight or perception). The prevailing train of thought is that young children, therefore, are better off with one “primary” residential parent. The non-residential parent should have frequent, but short, contacts with the child. Quite often the parenting plan, under this approach, includes two three hour visits during the week and one longer visit of six hours on the weekend. Of course, this idea leaves many questions unanswered. First and foremost, how do we determine who should be the residential parent. There are no hard and fast guidelines established so there are no bright line tests. Without any rules for determining who is the appropriate residential parent the presumption often is made that mom is the suitable choice.

A second concern is how this structure may affect the child’s relationship with the non-residential parent. Interestingly these proposals always refer to the parent who receives only twelve hours of visitation per week as the “non-residential” parent. This seems neutral enough, but the problem is in the description of the other parent. It is very common for the residential parent to be referred to as the “primary” residential parent. If there is a primary parent it seems clear that the plan is establishing that the other parent is secondary. This dichotomy may drastically impact the child’s future relationship with the non-residential parent.

Parenting time for toddlers (up to four years)

The prevailing thought is that children in this age range still do not have a complete grasp of the concept of time. Although toddlers have a better understanding than infants they still have not fully grasped the concept. The prevailing schedule is very similar to that listed above for infants – two three hour blocks during the week and a six hour block on the weekend. In addition, however, there is consideration given to allow the non-residential parent to have overnight visits occasionally. Often parents are encouraged to “experiment” with overnight visits to see how the child manages. One concern with this approach is there are no rules for how to judge the overnight “experiment”. The non-residential parent may judge the experiment a great success because the child played well, ate a good meal and went to bed with little difficulty. The primary residential parent may have a completely different view of the situation. If the child is tired and fussy the next day does that mean the experiment failed? Or, is it possible the non-residential parent let the child stay up a little later than normal because they were having so much fun?

Parenting time for children (four and up)

By age four most children have developed a grasp of the concept of time. Parenting plans for children after age four have fewer restrictions. It is very common to see the old parenting plan (every other weekend and one night a week) now listed as a minimum parenting schedule for the non-residential parent. The parties are often encourage to consider extending the weekend visit to include Sunday overnight and to make the weekday visit an overnight visit as well. Finally shared parenting plans are no longer discouraged by the current prevailing thought on child development. In fact, shared parenting plans may become the preferred arrangement as times continue to change. Shared parenting plans offer an opportunity for both parents to play maximum roles in their child’s life. However, before you run to court to seek a shared parenting plan you should check to see how your local court views shared custody. If you have a very young child you may want to reconsider how you approach the issue. It could be that your best argument is to argue that you should be the primary residential parent rather than asking for shared parenting time.

Ken McRae is a Cordell & Cordell, P.C. attorney practicing exclusively in family law in the firm’s Overland Park, Kansas office.

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