Knowledge Base

Custody and Mediation


May 1, 2005
Written by CMDR Staff

Custody and Mediation

For divorcing couples, the determination of custodial arrangements often presents the most emotionally charged and challenging of decisions. What to do about the kids? Where will they live? When will they be with each parent? Who will make all those big decisions about their future? Will they still love you? Will they be okay?

In Massachusetts, legal custody refers to the major decisions to be made in each child’s life, decisions about a child’s health, education, religion and welfare. Unless parents are unable to communicate, it is generally accepted that they will have shared legal custody, and, as such, they will make those big decisions together, that their children will have two parents watching out for their well-being.

Physical custody presents a host of different challenges. However, the key question revolves around where the children will live. Will they have one primary residence or two? In shared or joint physical custody, the children have two residences going back and forth between houses on a fairly balanced basis. If they have one primary home, the parenting plan still needs to reflect time spent with both parents.

Hot words such as “visitation” and “non custodial parent” need not be part of custodial arrangements. Although they are only words and the actual time spent with the children is the only real barometer of the custody, words can sting and often painfully.

One of the benefits of mediation is the opportunity to separate reality from emotion, to truly look at ways to be co parents irrespective of whether the children have one primary home or two. Decisions need to be made on weekday and weekend schedules as well as on vacations and holidays. The week is truly longer than seven days and nights.

These are opportunities galore for optimizing custody schedules if only one looks, really looks:

Our kids need a lot of oversight. Surely it helps to have more than one responsible adult available. Today’s parenting schedules need not be tomorrow’s. Some agreements build their schedule around the developmental ages of their children, changing the allocation of time at different strategic stages. Others build in reassessment dates with or without professional input. A parenting plan that starts as a custodial/non custodial arrangement can evolve over time into a shared custody.

The essential ingredient in fashioning a workable custodial plan is to draw upon your own unique knowledge of your children and to use this knowledge in designing a schedule that is in your children’s best interests. There are probably “bunches” of workable plans, giving you the leeway to adapt a schedule to each parent’s work and personal demands as well as to each child’s needs. The ultimate goal of mediation in general, and custody, in particular, is to keep the children in tact and whole despite the fact that their parents are separating.


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