Navigating Custodial Schedules
In family law actions that involve minor children, for example divorce, custody, and paternity cases, the parents must present to the court what they desire for a custodial schedule, that being the days the child resides with the father and the days the child resides with the mother. Other custodial times that need to be decided include the child’s birthday, each parent’s birthday, Mother’s Day, Father’s Day, Christmas and other holidays.
I have assisted many parents in presenting a custodial schedule to the court and have counseled in many mediation and negotiation sessions where both parents are present and are trying to persuade the other parent why their desired parenting schedule is better than the other’s. Parents often believe that 50/50 is fair, that a child should spend 50% of their time with one parent and 50% of their time with the other. What I have witnessed too often is that parents forget that a custodial schedule is not what they want or what they think is “fair”. A 50/50 schedule may look fair to the parents, but a custodial schedule is not about the parents, it is about the child and what is best for each individual child, given all of the circumstances.
Custodial Schedule Guidelines in Idaho
The Idaho courts have some statutory guidelines that the judges must follow if the parents cannot agree as to what custodial schedule is in the best interest of the child. These guidelines should govern the parents in mediation and negotiations as well. Idaho code section 32-717 provides:
In an action for divorce the court may, before and after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children. The court shall consider all relevant factors which may include:
- The wishes of the child’s parent or parents as to his or her custody;
- The wishes of the child as to his or her custodian;
- The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings;
- The child’s adjustment to his or her home, school, and community;
- The character and circumstances of all individuals involved;
The need to promote continuity and stability in the life of the child; and
- Domestic violence as defined in section 39-6303, Idaho Code, whether or not in the presence of the child.
(These same guidelines are applied by the courts to all custody cases.)
How Attorneys Can Help
Attorneys can help parents analyze the factors that guide the courts as follows.
1. If you have to come before the court because you haven’t agreed to a custodial schedule, the wishes of the parents are obviously in conflict. The court will listen to testimony as to what each parent desires, but it is not the distinguishing factor.
2. The wishes of the child can be presented through agreed upon statements, a counselor’s input, or, more recently, there is a new provision in the Idaho Family Law Rules that allows for child testimony under certain conditions and if the court allows it. In this author’s professional opinion child testimony should only be used on rare occasions when there is no other way to inform the Court as to the child’s wishes and only if there is a belief it will significantly influence the Court. Age and maturity of the child, as well as the potential damage to the child must also be addressed before even making the decision to request that a child testify.
3. The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings. This provision takes into account the child’s familial relationships with mother, father, stepparent(s), siblings, step siblings, half siblings and extended family.
4. The child’s adjustment to his or her home, school, and community. Adjustment and stability are major factors that I have found to be relevant to the Court and can include school attendance, grades, health needs of the child, extracurricular activities of the child as well as the parents’ involvement with each of these aspects.
5. The character and circumstances of all individuals involved. This is not about who leaves the cap off the toothpaste and should not be used to air the difficulties of the marriage, but rather to illuminate whether or not there are serious issues that prevent a parent from adequately parenting, such as criminal activity, drug or alcohol use, physical abuse and/or domestic violence, untreated mental illness, et cetera. The Court often looks to see which parent is the “go to parent” for the daily needs of the child or if parenting is equally shared, and/or which parent is more willing to cooperate with the other.
6. The need to promote continuity and stability in the life of the child. This could include, again, which parent is the “go to parent”, who works his or her work schedule around the needs of the child, who moves or has to move residences more often and why, and which parent promotes success in school , not only regarding grades but attendance a well.
7. Domestic violence as defined in section 39-6303, Idaho Code, whether or not in the presence of the child. I have found the courts to seriously consider this aspect if domestic violence is proven.
It is the hope of all family law attorneys that the parents can decide what is in the best interest of their children. When they cannot agree and put aside their own wants as to what they think is fair, (which again is not the guiding principle), the Court must decide. Before parents go to court over custody, they should review the above factors and conduct an honest analysis of the facts, because when parents cannot agree, the engine for all of the above criteria that drives the Court’s decision in deciding the custody of a child is then what the Judge believes is in the best interest of the child. It is an overall composite given all of the above and the unique facts of each case. (A note, parents should not agree to a custodial schedule that exposes the child to abuse or domestic violence.)
For legal consultation for family law matters, call Merrilee A. Parr at (208) 667-1227, now accepting cases for the new year.