Visitation agreements and custody arrangements are slightly interchangeable terms for physical custody. Technically, visitation is when one parent has primary physical custody, while the other parent has visitation. I don’t like for clients to get hung up on the labels of physical custody; sole custody, primary custody, shared custody, they have a lot of technicalities wrapped up in them, it can get very confusing for clients. I use the term physical custody to refer to all these scenarios.
The physical custody schedules the court awards are dependent on your unique family situation. Like with most family law cases, a custody outcome is dependent on your particular circumstances. Even though judges and attorneys see custody and divorce cases all the time, and there are a set of fairly common schedules that many families use, there is no set of similarities that can predict exactly what your schedule will be. Parenting time is dependent on the particular facts of your family and your case.
Clients need to note the distinction between having a judge grant a custody order and reaching an agreement between the parties. When a judge decides your custody arrangement, both parties present testimony and evidence. You put forth your case and tell the court what you want, why you want it, then the judge makes a decision. The judge’s decision will be based on a specific set of factors that they must consider. You’re putting the fate of your family and day-to-day schedule in the hands of someone who has just met you, and who will only have a few hours to try and figure out the full picture of your family situation.
The judge’s decision may be very specific or very general. It may not include all the details you want, and it may include some you didn’t want. Common schedules we see with court-ordered custody include:
- Primary physical custody is awarded to one parent with every other weekend to the other.
- Primary physical custody is awarded to one parent with extended weekends (Thursday – Sunday or Friday – Monday) to the other.
- Primary physical custody with one parent and three weekends per month to the other.
- Shared physical custody where children are with each parent for one week at a time, or for 3 nights with one parent and then 4 nights with the other each week.
These arrangements may or may not change between school year and summer. The summer arrangement may include the parent with less time getting more chunks of time in the summer.
The court can also order shared physical custody, anywhere from strict fifty-fifty, or one parent has most of the summer and a big chunk of holidays, while the other parent has most of the school year. Fifty-fifty options are usually limited, either to one week-on and one week-off or a two-two-three schedule. A two-two-three means one parent has Monday and Tuesday night, the other has Wednesday and Thursday, then you alternate weekends.
An important point about letting a Judge decide your schedule is that while the Judge will consider what facts each parent has to support their preferred schedule, it is ultimately up to the judge to determine what type of schedule is best for the child. For example, some judges think that a 2-2-3 schedule is too much ‘back and forth’ for kids and therefore will not order it.
There is a lot more flexibility if you can come up with a settlement agreement. If you and the other parent have particular scheduling needs, maybe one of you works off hours, for example, I encourage clients to come up with a physical custody settlement agreement if you can. If you are close to agreeing on things, coming together to agree on physical custody gives you the flexibility to make decisions specific to your situation, relieving you of the risk of a judge ordering something that won’t work for your family.
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