Surprisingly, a web search on “tips for custody orders” does not return many useful or practical hits. This is unfortunate because a custody order is one of the most important items you will need if you are faced with a split parenting situation. Everything in the order down to the specific wording will have a significant impact on both you and your child for years to come. A custody order done right means a lower likelihood of going back to court, less to argue about, and greater ability to enforce the custody order. A custody order done poorly leaves both parties unprotected from violations by the other and sets the stage for conflict and parental alienation. The suggestions provided below apply to orders agreed between parties as well as those determined in a courtroom. They also apply to both joint physical custody and uneven custody. Please note that we are not attorneys and this is not to be interpreted as legal advice. These are simply things we have learned from personal experience and wish someone else would have told us.
The thing to remember about a custody order is that it functions as a legal starting point, not a rigid endpoint. Life happens and things will come up that necessitate changes to the custody schedule. If both parents can work together and agree, then they don't have to follow every detail in the order. It is when the parents can't agree on adjustments that those details in the custody order stand with legal backing. Your custody order should be very specific so that nobody can disagree about who is supposed to have the child at any given time. It should include who gets what holidays each year, specific times for pick-up and drop-off, who is responsible for driving, and exactly how the summer is divided. For joint custody, you need to specify how the time is divided (ex. - which day to which day, how many weeks at a time). For uneven custody, the details of weekend and weeknight visitation should also be spelled out clearly.
If at some point, you or the other parent say, “We can always decide that later if it comes up” or “I'm sure we'll be able to work that out later,” stop what you are doing and decide it NOW. If you are actually getting along and working well together, then there is no better time to come to these decisions. If you aren't, then don't blindly expect that you will at a later time. The only way you can get these things added into your custody order later is by going through the court, which is very expensive, stressful, and time-consuming. Avoiding the “later” trap especially applies to those who are going to be noncustodial parents. Noncustodial parents, even those with joint legal custody, will be subject to the unilateral decision of the custodial parent any time one of these “later” issues comes up. There is a reasonable chance the custodial parent knows this, so his or her suggestion of “later” may really mean “I'll decide that on my own.”
If you are getting divorced and want joint physical custody, don't settle for less. As described throughout this website, joint custody IS in the best interest of your child for many reasons. The time of the initial custody determination will be your best and most likely your only chance for joint custody. If you settle thinking that you can get joint custody at a later date, you will be wrong. Arkansas law currently favors joint custody in cases of divorce. However, once the divorce is settled, that preference is no longer present. If the other party is given primary custody, you will then need to prove a “material change of circumstances” before the court can even consider a change in custody. In the event you are able to prove this in court, a judge is still unlikely to award joint custody after a bitter court hearing.
Don't assume that joint legal custody actually means much. There is a major difference between joint physical custody and joint legal custody. Joint physical custody means sharing equal or near-equal parenting time with the child – a primary goal of Arkansas Advocates for Parental Equality. In contrast, joint legal custody means that both parties have decision making rights when it comes to the minor child. Courts will often award joint legal custody but still give one party primary physical custody. What they don't tell you is that joint legal custody does not mean equal decision-making rights. If the two parents disagree, the custodial parent will be the one making the ultimate decision unless the noncustodial parent challenges the issue in court at great expense and poor odds. Equal legal rights only come with equal physical custody.
A dynamic parenting plan is one that accounts for your child's growth. It can address expected changes when the child goes from a toddler to elementary school to high school. It can also address the effect of extracurricular activities. A parenting schedule for a 2 year old will have little relevance to that of a 15 year old. However, if custody was determined when the child was 2, that order will remain in effect until the child turns 18 unless one of the parties tries to have it modified. For example, consecutive weeks in the summer or weeknight overnight visitation can apply differently to a newborn compared to a teenager. If one party is also planning on moving in the near future in a way that affects custody, there is no reason this can't be addressed in the order. None of us have a crystal ball to know how the future will turn out, but any attempt to account for the child's growth is better than no attempt at all. Remember – custody orders are a legal starting point, not a rigid endpoint. The parenting plan can easily be modified if both parents agree. However, if they don't agree, at least they'll have a clear starting point.
Refrain from mudslinging statements in divorce decrees and custody agreements. Although Arkansas allows no-fault divorces, state law says this only applies if both parties have been living apart for at least 18 months. Otherwise, you have to present grounds for divorce (listed in AR Code § 9-12-301 in all their ridiculous grandeur). The good news is that you do not have to be specific in your grounds for divorce in your decree, so please don't. Our laws encourage overblown statements alleging serious misdoings by one specific party when the reality is that most divorces occur because the two parties simply don't get along anymore. These statements end up as permanent public record online, no matter how true or untrue they are. To make things worse, the other party's ability to defend against these allegations is very limited. The more inflammatory your statements, the worse your relationship with the other parent will be and the harder time you will have coparenting. Imagine a prospective employer doing a web search on you and discovering that you were divorced due to “habitual drunkenness,” “cruel and barbarous treatment,” or “impotence” when none of those things were actually true. If this isn't bad enough, imagine your child doing the same search.
Don't be afraid to get professional help to make sure your custody agreement is done right. While it is possible to get a do-it-yourself divorce with a custody order, that doesn't always mean it's a good idea. Your initial custody agreement will have a profound effect on the next several years of you and your child's life, so it is worth the effort. Whatever money you put into your custody order up front will be minor compared to the cost of having to revise it later. If the other party has an attorney, you should as well – especially if you go to court. Using the other parent's attorney to come up with a mutual agreement isn't necessarily a good idea either since they were hired by the other party to represent only that party's interests. When hiring an attorney, make sure they support shared parenting. If not, your divorce and custody will likely be more confrontational and expensive.
When coming up with a parenting plan and custody agreement, hope for the best, but plan for the worst. Even if everybody is on the same page about custody at the time it is decided, that doesn't mean things will remain this way. Things like jealousy, greed, and the need for control have a way of messing things up. All it takes is a new spouse or a job promotion and one party may start using the child (and child support) as a bargaining chip or source of control. Your custody order needs to be written like a bulletproof business contract and be able to function across all levels of cooperation and hostility.
Don't feel obligated to include common clauses in your custody order. Lawyers have templates they start from when writing your motions and orders. Some of these include unnecessary phrases or statements that don't apply to your case. If one of these ends up in your proposed order, have it taken out. For example, you don't need to include a restraining order against your spouse unless there is actually a need for one. The statement about “no overnight guests of the opposite sex while the child is present” also ends up in many contracts despite being fraught with potential problems. Basically, if these clauses don't apply or you don't feel comfortable with them, then don't include them.
If you suspect that the other parent will block normal contact with your child, then you may want to include some communication guidelines in your order. Conversely, if the other parent has little respect for boundaries or is overbearing, then excessive communication with your child when he or she is with you can be equally problematic. The most commonly accepted rule of thumb is one communication per day, and less as they get older. Of course, this can vary by situation. It is rare for a child to need to speak to one parent while spending time with the other. Excessive contacts are more reflective of the offending parent's insecurities and state of mind than the child's.