Here are some child custody and parenting time myths most family lawyers hear about and have to dispel.
Myth: The kids get to choose who they live with as soon as they are 12 (or 14, or whatever).
Truth: I've always wondered where this myth started, because I'm not aware of any state that has an automatic "child decides" provision once they hit a certain age. Massachusetts definitely does not have this.
Yes, the wishes of the child is one factor the court is supposed to consider, IF the child is "of suitable age and maturity." That factor is one of numerous factors that the court must consider in awarding joint legal decision-making or parenting time. And the child's wishes aren't more important than the other factors; they're all weighted equally until the judge decides otherwise.
Myth: Since we have joint legal decision-making, everything in both our houses should be the same and we have to agree on bedtimes, suitable food, activities, and babysitters.
Truth: No, that's not correct. Joint legal decision-making means that the parents will make MAJOR decisions about the children together regarding their health, education and welfare. This doesn't mean that you have to agree on day-to-day things for the children, like homework, bedtimes and food. Each parent is responsible for those day-to-day decisions during his and her own parenting time, without interference from the other parent.
Myth: If the other parent is ever not there during his parenting time, he has to ask me first to take care of the children, before he hires a babysitter or lets his girlfriend watch them.
Truth: This is not correct, unless there's a specific clause in your Parenting Plan requiring this. In general, if a parent can't be there every minute to care for the children, he is responsible for providing suitable child care of his own choice.
Myth: Children should be with one parent during the school week and see the other parent on weekends and maybe more during the summer. Stability during the school week means staying at one house.
Truth: In general, if a parent wants equal time with the children, the court is going to lean in favor of equal, 50-50 timesharing, including during the school week. This is sometimes done by an alternating week schedule (the children change households every Friday or every Monday), and sometimes is done through a 5/2/2/5 schedule (where the children are always with Parent A on Monday morning to Wednesday morning; with Parent B from Wednesday morning to Friday morning; and weekends are alternated). These schedules give each parent the chance to be a school day parent and take responsibility for homework, picking up and dropping off at school, and being involved with school things.
Myth: The other parent can't take the children out of state without my permission.
Truth: After the divorce is over, either parent is presumptively allowed to travel out of state with the children during his/ her parenting time, or for vacations or break time. So unless you have a clause in your Parenting Plan that prohibits a parent from traveling at all, he can travel during his own parenting time. Although he doesn't need your permission, most court orders do require that the non-traveling parent gets notice of where the child is staying at night while traveling, and notice about all travel arrangements, including flight times.
Myth: Since we argue a lot, sending messages through the children is the best way to communicate.
Truth: Using your children as a messengers is always a bad idea. It's harmful to then and puts the children squarely in the middle of your conflict with the other parent.
Myth: A child should never be asked to negotiate a change in the parenting schedule or notify the other parent of something like a doctor's appointment or a school function.
Truth: Your goal as a parent should be to ensure that your kids don't have to worry about things like that. The parents need to find some method of communicating that doesn't involve the children, and email is often a great way when the parents can't talk in person or on the phone.
Myth: When I have bills, receipts, medical invoices, and requests for him to pay me back for something, it's okay to put those things in an envelope and send them with the kids. The envelope is sealed, so the kids can't see what's in there.
Truth: Your kids know exactly what's in that envelope, and they shouldn't have to witness the other parent opening it, reading what's inside, and reacting to it. Reimbursement requests can be mailed, hand-delivered or emailed if such a clause is incorporated in your separation agreement.
Myth: If we're having a problem at exchanges, or with telephone calls, I'll just call the police.
Truth: Almost always a bad idea. Police officers are not enforcers of parenting time orders. Calling the police during an exchange of children shows the children that one of their parents or, actually both is a bad person. While most police officers are very well trained at dealing with domestic situations, all they can do is speak with both parents and try to get them to be reasonable in front of the kids. Unless there's a specific court order telling them to take a child, they can't physically remove a child from one parent and hand him over to the other.
Myth: The other parent isn't paying child support, so she doesn't get to see the kids.
Truth: In Massachusetts, the obligation of child support and the right to parenting time are completely separate issues. A parent cannot deny parenting time because a payment for child support is late or in the arrears for child support payments.
Myth: I have the kids more than half the time, so I can move out of state whenever I want.
Truth: This is almost never the case. When the parents have joint legal custody and essentially equal parenting time, a request to move out of state must be carefully considered by a judge before it happens, and the judge may decide that your child's best interests require that he remain in Massachusetts. Even if a parent has sole legal custody, if the move will interfere with the other parent's parenting time, the parent who wants to move still needs permission from the court.
Should you be in the midst of a divorce or contemplating divorce, contact the Law Offices of Renee Lazar either through email or telephone 978-844-4095 to schedule a FREE one hour no obligation consultation.