Knowledge Base

Divorce and Children,
The Best Interests of Children, Determinations of Custody 


April 1, 2013
Written by Lynne C. Halem

Families contemplating separation and divorce are confronted with making major decisions in many areas.  They need to determine how their assets will be divided, how moneys will be allocated, what to do about health and life insurance, not to mention debts and taxes. In one form or another, all of these areas deal with finances.  The sole area, which is outside the realm of money, is that of the children.  Beside the fact that custody determinations do not play a role in the division of money, few would deny that custodial decisions have the greatest long-term significance.

Divorcing couples in Massachusetts need to understand that here the law centers on two aspects of custody.  “Legal Custody” refers to major decision-making with respect to a couple’s children.  Many couples have little issue with agreeing to have “shared legal custody”, recognizing perhaps that in the key areas of health, education, and religion, it may indeed be beneficial to have both parents involved in the determination of the outcome.  Others agree to shared legal custody without really understanding its implications or even its meaning.  They do not envision joint decision-making in any manner.  To these individuals, the future may hold some unsettling surprises if the other parent truly views himself or herself as a partner in the decision-making.  Still, “legal custody”, be it shared or sole, is not where the battle lines seem to have been drawn.  Rather here the determination of physical custody is the true “culprit”, giving rise at times to prolonged and repeated courtroom battles.

Physical custody refers to where the children reside. Joint or shared physical custody offers the paradigm of two homes, with the children sharing equivalent time with each parent according to an agreed upon parenting schedule. Obviously there are variations on this theme.  While some couples equally or just about equally share weekly and holiday time, others adjust their schedule to accommodate employment and personal demands, resulting in the children spending more time with one parent than with the other. For these couples, joint or shared custody is still the appropriate label since conceptually their intent is to be equal caretakers of their children.  They enter into shared custodianship with a commitment to being flexible in adjusting their parenting schedule over time as parental and children’s needs evolve.

Other families do not feel that joint custody is right for them.  For these families, the children have one principal home with scheduled time with the nonresidential parent.  Here too the variations are great, mirroring at times a shared physical custodianship.

There is no perfect custody schedule. There is no one way that is “best” for all children.  The secret of “best” not surprisingly lies with the parents’ ability to make their custodianship work.  Parents who are able to collaborate and cooperate, to communicate with each other on a regular basis, and who, most of all, support each other as parents have successful custodial relationships and children who thrive knowing that they can depend on their parents, individually and jointly.  Good post divorce parenting is a gift that is truly in the best interests of children, regardless of its custodial label. 

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