JOINT AND ROTATING CUSTODY: FACTORS TO CONSIDER

Florida courts are considering joint and rotating custody in more and more divorce cases and there is even talk about a presumption that children should spend 50% of their time with each parent. There are certainly arguments in favor of this position, and I am not one to argue against it. However, there are numerous factors which should be considered to determine whether it will be feasible. These factors include:

1. Two Households: Both Alike and in Proximity: In order to rotate time with children, both parents should, ideally, live in the same neighborhood, or, at least, in reasonable proximity to one another. This will avoid long commutes not just for the parties, but for the children. This may not be economically feasible for some parties.

2. No living out of a suitcase: Judge who consider and ultimately award joint and rotating wish to avoid a situation where the children must pack a bag every few days or at the end of each week. In order for the rotating schedule to work, children need to have two sets of everything- school textbooks, clothing, toiletries and medications, etc. There will be the occasional transport of items from one household to another, but, generally speaking, the children need to have a separate set of all essentials available at each household. Again, this may not be economically feasible for both parties.

3. Schedule permitting: Not only must each parent have the ability to coordinate their schedule around their children’s school schedule, each parent must be able to accommodate the
extracurricular activities that go along with the schedule. This is not an easy task and not always possible as many work schedules do not allow for this level of flexibility.

4. Living in harmony: While the parties do not have to be completely amicable, it would be difficult to convince a Judge that they could pull off this schedule if there is a high level of discord between them. Couples who are at odds and who have litigated numerous issues during their divorce often do not make suitable candidates for joint custody, which requires communication and cooperation between the two parties.

When representing a client who is insistent upon joint custody, I often ask about the client’s schedule and why this concept is so important. In many instances, the concern is about quality time with the children and not losing touch with them. However, there are other ways to accomplish this goal that do not require a rotating time sharing arrangement. Parties are often unaware that they are both entitled to attend after school and extracurricular events regardless of whose “day” it is. This is especially important to the parent who has been coaching little league or who attends boy/girl scouts with the child. Such activities can be included in a time sharing schedule and may be far more important than the number of overnights.

I’ve seen instances where joint and rotating custody works extremely well and other instances where it is not possible. The important thing to keep in mind is to focus on the parties need to share in the lives of their children and the children’s need for stability and equal participation, which may or may not equate to equal time, with both parents.

All's Fair in Love and War: Or is it?

One of the oft heard phrases in divorce mediation is “I want what is fair”. It’s a paradox of sorts as it is hard to argue that one party should settle for something that is not fair while, at the same time, it is difficult to define what is, in fact, fair. The person who makes this statement has no trouble with it, as he or she is firmly convinced of what is fair. However, fair, much like beauty, is in the eye of the beholder.

In mediation, parties are often encouraged to generate solutions. This is particularly true in divorce, where issues such as time sharing with children, are better decided by the parties as opposed to a Judge who has never met their offspring. This is also true of dividing assets and liabilities as a Court’s approach to simply split everything may not work for the unique situation at hand. But what often happens is that, rather than discussing options, one or both parties become fixed on a particular position, based on the notion that it is the fair or right way to handle things. The party or parties who do this become what I refer to as “the arbiter(s) of fair.” Should the other party reject this proposal, then the conclusion is that he/she must be unfair.

Unlocking the gridlock is often a mediator’s challenge. In order to do so, one must look beyond the position taken by the parties and get to the heart of the matter. In essence, what are a parties motivations, or, more properly phrased, what are his/her interests?

Interest based negotiation is especially crucial in divorce mediation. Often, parties become stuck on a particular position, i.e, I must keep the house, I want to spend 50% of the time with the children, etc. The parties position is often based on what this particular asset or issue represents to that person. Keeping the house may represent security and insistence on joint custody may represent an underlying fear of not being involved in the children’s lives. However, there may be another solution that addresses the concern. For example, a party may be able to remain in the home for a period of time or may realize that there is greater security in reducing the expense associated with a home that has now become too large. The parties can also work out a schedule that allows for ample quality time between the children and both parents, without looking at percentages.

Divorce mediation is, quite possibly, the most stressful negotiation possible given the high level of emotion and fear. It is not a far journey from fear to insistence on what is fair. Rather than question the determination of fairness, a mediators role is to help the party uncover the interests that are at stake. By uncovering these interests, it is entirely possible to arrive at a solution that is fair to all concerned.