In this podcast, Heidi Opinsky talks with John Maher about child custody during a divorce. She covers factors parents need to know and looks at what happens when parents can’t agree on a custody arrangement for their children.

John Maher: Hi, I’m John Maher, and I’m here today with Heidi Opinsky. Heidi is a divorce and child custody lawyer in Connecticut and New York with over 30 years of legal experience in mediation, collaborative law, and litigation. And she represents clients in a full spectrum of family law needs. Today we’re talking about child custody in a divorce. Welcome, Heidi.

Heidi Opinsky: Good afternoon, John.

What Is Child Custody in Relation to Divorce?

John: So Heidi, what is child custody as it relates to divorce?

Heidi: So child custody is generally which of the parents is going to be raising the child as a primary physical custodial parent. But then there’s also different types of custody. There’s legal custody, which is decision making, and there’s physical custody. Where is a child going to reside and be primarily with which parent as a residential parent? And it could be shared.

Legal Vs Physical Custody

John: Tell us a little bit more about the difference between legal custody and physical custody. What are the differences there?

Heidi: Sure. So legal custody is decision making. Which parent is going to make major decisions for the children versus day to day decision making for the children? And in most cases, both parents have joint legal decision making regarding the child. And that makes sense because if you’re capable of making a decision in the best interest of the child, you should be able to make that decision. When you don’t and can’t make decisions independently in the best interest of the child, that’s when you may lose decision making control or authority.

So for instance, someone who’s a drug addict and they’re not capable of stopping their drug habit, and they’ll take drugs while watching the children. Obviously, is that person making good judgment calls with regard to how to raise the children in the best interest of the children? No, they’re being selfish and they’re dealing with their drug problem more than the child, so they may lose authority to make decisions in the best interest of the children if they can’t curb their drug habit, or if someone’s an alcoholic and they can’t stop drinking while they’re with their children. So they may not make the best judgment calls when they’re under the influence of alcohol, so they could lose authority in decision making control over their child too.

So the courts are looking for parents that have good judgment and are able and capable of making wise, prudent decisions in the best interest of their children. So in most cases, people can do that, even though they may hate each other, they may not make the best decisions with regard to how each other behaves towards each other, but they can do it with regard to their children. So even though they’re getting divorced, and even though they may be battling it out themselves, they are still capable of making wise, prudent, cogent decisions with regard to the best interest of their children. So that’s joint legal decision making.

So if you can’t, some party may come in, either of the spouses, and say, “I want sole custody.” What they really mean is sole legal custody, making decisions totally 100% for the children, irrespective of the other parent. So that’s not very common, obviously. That’s in rare circumstances. And even when you have a problem, such as alcohol or drugs, the courts are very lenient and they want you to get better. They want you to rehabilitate yourself, so as long as you can prove that you might’ve had a problem in the past but you don’t now, they’ll give that decision making authority and control back to you. They’re not looking to take that away from you. Most people think, “Oh, the judge is not on my side. They’re taking control away from me.” They’re not deciding one parent’s better than the other. They’re deciding what’s in the best interest of the child. It’s not which parent’s better. What’s best for the child?

And if they see this, there’s a serious problem, they certainly will limit that authority and control because they’re protecting the children. They have an obligation as a court to protect the children if they’re in danger. But you have to show that they’re in danger. So even if you have a spouse and they drink, and you may not like how much they drink, if they can control their drinking while they’re with the children, and it’s not interfering, the courts aren’t going to take that child away from the parent, even though one parent may have different ideas of how much is too much or not. As long as you’re okay while you’re visiting the child and the child’s not in danger, even if a parent drinks, they’re not going to take the child away from the parent or take their authority away. It has to be significant.

Do Most Divorced Parents Share Physical and Legal Custody?

John: So then how does that relate to physical custody? I assume it’s normal for people to have both joint legal custody and joint physical custody, although obviously the person, the child can’t be in two places at once, so you have to work something out in terms of when they’re living with one parent and when they’re living with another. But is that pretty standard that you have joint physical and legal custody?

Heidi: What you really have in most cases, it’s one parent that’s listed as the primary physical custodial parent because in most cases, there’s usually one spouse that’s the primary wage earner, and they’re going out and working every day and working more than 40 hours a week. Some people work 100 hours a week. So most cases you’re not necessarily at a 50/50, so one person tends to be the primary physical custodial parent, and the other parent could have a liberal access schedule. And sometimes it is shared, and you say they have shared physical custody. It’s a draftsmanship issue. A lot of people in their minds when they’re getting divorced, don’t want the other spouse to have primary custody just because they’re so angry. Why do they get primary? I’m just as good as they are. I’m going to work. I want shared physical custody.

But the reality is when you look at it, you’re going to be at work for the primary part of the week. This person isn’t working as much, or working part-time. So it ends up being a draftsmanship argument issue of whether this person’s the primary, or it’s shared physical. There’s also a reason for it too because if it’s a true shared physical, you can get a haircut on child support payments. So a lot of the noncustodial parents, who are the payer spouses, who are the wage earners, will seek to get …they’ll say, “I want shared physical custody because I don’t really want to pay as much.” So it ends up being a little bit of a strategy that way. But is that really what’s happening? Or is it really one parent’s going to be the primary, you just don’t want to pay as much child support? So let’s be realistic here. This person’s going to be the primary. You’re going to be the visiting parent. It’s not exactly 50/50. You’re not going to get a haircut on the child support, and that’s how it’s worked out.

But generally speaking, what should be done is always what’s in the best interest of the child. If it’s best for the child to really see each parent 50/50, that’s what should be coordinated. If it’s not, and it’s just a strategy to take a haircut on the support payments, maybe not so much.

Can Divorce Lawyers Help With Custody Arrangements?

John: Right. So when it comes to visitation and custody and determining that, can a divorce or custody attorney help in that determination?

Heidi: Yes. So generally speaking, we look, as attorneys, and say, “There’s usually a minimum or a pro forma type of schedule.” What would that look like? Certainly, alternate weekends, Friday after school to Sunday evening, or Monday delivery to school, that’s not unusual at all. That would be a pro forma. You’re almost going to be guaranteed if you’re a good father, good mother, you’re going to get at least alternate weekends.

I come into cases, and particularly when it’s out of wedlock, I find it more so than when it’s in wedlock, but spouses may hate each other at the time. And they just want to tranche on any minute that the other side’s going to get with the child. And I tell clients, don’t start counting minutes. I want … They’re getting 20 minutes more, or this, because judges hate that. They don’t want any parent to be counting time with regard to their child. If you start counting minutes, you already know that there’s a problem.

John: Right, because it just indicates that there’s more of a selfishness on the parents’ part, like you said before, than it does that they’re looking out for the best interest of the child.

Heidi: Exactly. It screams out to judges who do this day in and day out, and see 30 cases a day. And you’re going to come in, and so the minute I start working with clients who start counting minutes or days, I sit them down right away and tell them, “You’re not thinking about this correctly.” And sometimes it works, sometimes it doesn’t.

Do Custody Arrangements Change When Parents’ Living Arrangements Change?

John: So does a custody agreement need to change if one or more parents’ living situations change?

Heidi: Yes. So frequently, parents want to relocate, so you have to determine if they’re going to move out of state. Is it going to be a close move? Is it going to be a large move? Are you moving to England? Are you moving to California from the Northeast? Are you moving to one area in New York, the Bronx to Queens? This impacts the schedule of access. I had a case just last week, the parents lived literally on the same block of each other. The mother wanted to move to Brooklyn from the Bronx. The courts don’t really consider that such a relocation case.

John: Right. It’s in the same city.

Heidi: Yeah.

John: But it would still affect whether or not … Previously, if the kids just had to walk down the street to their dad’s house, or their mom’s house, or whatever, and now you have to drive them all the way across town.

Heidi: It’s an hour, another hour out of your day.

John: That’s a big change.

Heidi: Yeah. And you have to negotiate it. But certainly, that will change the parenting plan that gets worked out. But a pro forma plan usually is minimum. I can say out of the starting gate, any parent’s going to get at least dinner visitation during the week if they want it. They’re going to get alternate weekends if they want it. They’re going to get shared holidays, birthdays, things like that if they want it. They’re going to get time during the summer when the child’s not in school if they want it. So when I have a parent that’s like, “Well, they can have Friday night,” or, “No, Christmas is my holiday,” well, it’s not going to be that way anymore. You know?

John: Yeah. You don’t get to determine that.

Heidi: Yeah, exactly. But that’s what happens, and it’s usually the parent who’s been the primary that thinks they’re going to dictate and control the other parent’s schedule, and they have to come into reality. No, you’re getting divorced and you don’t have the right to dictate the other parent’s schedule, or what they do during their schedule.

Do Children Have a Say in Custody Arrangments?

John: Do the kids at all have a say in that at all? Can they determine that, hey, I’d rather live with mom than dad, or I want to spend Christmas every year with Mom, but I’ll spend Easter with Dad? Do the kids have a say in it?

Heidi: That’s an excellent question because kids, number one, obviously can be influenced by either parent. And also, yes, they also sometimes are more mature than the parents are during the divorce. That happens many times where I see the children are absolutely the more mature side of the coin here of either parent, and sometimes of both parents, they’re the brighter and more logical and more mature. So yes, as a child ages… a 14 year old child can decide more so which parent they want to be with more than a two year old, or a six year old, or a five year old, a seven year old, eight year old.

So as a child matures and develops, the courts believe they have more maturity and skills and knowledge to make appropriate choices for themselves on, I want to be more with Mom, or Dad, or what have you. Hopefully it’s not just favoritism or undue influence. So you hear alienation, those types of terms that come up. This parent has alienated the child against me, or undue influence, or poisoning, those kinds of terminology. Most of the cases aren’t like that. Obviously, we’re all hopefully rational, intelligent people that aren’t just looking to harm the other side, or be angry and acrimonious. So if we are truly thinking about the best interest of the children, there’s an ebb and a flow, a give and a take, a sharing a cooperation. And hopefully that’s how most cases will resolve. Sometimes it doesn’t though.

Do Custody Agreements Prevent Parents From Moving?

John: Right. You mentioned before that it can be a problem if one parent, maybe they’re the one who has the most physical custody. And maybe they get a job in another state and they have to move for their job, or they wanted to move for their job, or maybe they just want to get away from the city that their ex spouse is living in, and they just want to move. Can they do that? Does that cause problems in terms of custody? And can the other parent, who’s staying where they are, block that other person from moving? Or how does that all work?

Heidi: That is usually termed relocation cases, or radius cases. And you can actually stipulate an agreement, for instance, if you know I’m working at GE, but it’s going south, everyone’s leaving. I’ve investigated the market and my new job is now in Massachusetts and I can’t find it elsewhere. You could be involved in a relocation case where the one parent’s fighting, no, you can’t leave. You have to prove to the court that it’s in the best interest of the child that you have to relocate with the child, if you’re seeking to relocate with the child. So you can’t just decide, you do have to go back to the court.

You can either stipulate it in an agreement. If you know it’s going to happen and there’s a likelihood, I always try to get the clients to agree to it in their settlement agreement in advance, in the event that I do have to move for work, this is how the new schedule and parenting plan will look. Do that in advance so you’re not litigating. But if you can’t, and you can’t agree, you have to go back to court and ask for relocation and modification of the parenting plan.

John: And like you said, you’d have to prove that-

Heidi: You can’t just up and leave.

John: Right. This is my career. I’m getting a huge promotion and this is going to help us be able to pay for college or whatever because I’m doing this.

Heidi: This is always shocking to people. I’ll give you an example. You get divorced. You fall in love with someone. They live in London. They have an ongoing career in London. You’re now married to this person. You have to leave and move to London. Well, you may have to leave, and you don’t get the same rights with your kids as you thought you were going to get.

I mean, let’s say you’re even the custodial parent. I’ve seen the courts here in Connecticut. There is a case where a gentleman married his new wife in London. They were in London. He didn’t get custody of the kids because the mother had rehabilitated herself and the court determined that it would not be in the best interest of the children to now not have that relationship with the mother who got rehabilitated, who did originally have problems, so the father was the custodial parent. And he didn’t get to move to London with the kids. The mom got custody. So you could lose custody for a situation like that.

You have to make serious decisions. You can’t do it willy nilly. It’s not something that you can do with a wave of the hand, with any short sightedness at all, because the courts seriously consider the best interest of the children. And even the marriage to the other woman, and she lives in London, and he had to move to London, that’s your choice. That’s how the court viewed it. That’s your choice.

John: But it was in the best interest of the children to stay in the city that they were in and continue to stay in their own school.

Heidi: And the mother had rehabilitated, and they were now having a good relationship with their mother, so the court didn’t want to disturb that. It depends on the case.

John: That’s all very interesting. And thanks again for speaking with me today, Heidi.

Heidi: Thank you, John.

Contact the Law Offices of Heidi E Opinsky, LLC

John: And for more information, you can visit Heidi’s website at the-law-offices-of-heidi-e-opinsky.websitepro.hosting. Or call the law offices of Heidi E. Opinsky, LLC, at 203-653-3542.