If you have children under 18, an essential element of any divorce agreement is “custody.” This can be a vexed issue, but I strongly believe it does not need to be. Too often, parents attach far too much importance to terms like “legal custody” and “residential custody” without considering what those terms actually mean.

“Legal Custody” defines who will make the important decisions affecting your children in the future. While important, they are few in number, to wit, medical, educational and religious decisions. This is to be distinguished from “residential custody” which relates to day-to-day decisions involving the children, e.g., what time they go to bed, what they will eat for dinner, etc. If you agree to allow your partner to have legal custody it should not mean you are forfeiting your rights to involvement in those major decisions. Every well-drafted agreement should require notification by the custodial parent to the other parent of the need to make a major decision and advise as to the basis for that decision. If the custodial parent is acting unreasonably, the other parent now has a predicate to go to court and prove same. He/she is not bereft of remedy.

“Residential” or “physical” custody defines how the parenting schedule will work when the children move from one home to the other. In mediation, the parents will discuss what works for each of them and reach an agreement. The mediator will cover other issues, such as major holidays, school recesses, birthdays and how they will be divided. The custody section of the agreement will also speak to topics like splitting of vacations, international travel, rights of both parents to attend all child-related appointments, etc.

These discussions, negotiations if you will, are important but should not be divisive. As parents, you will be hopefully working together to assist your children in the coming years. You must act together and maturely if you want your children to succeed. Unlike litigation, where unfortunately parents tend to think of their spouses as adversaries, I believe the mediation process produces strong improvements in parental relationships and teaches parents some of the tools they will need post-divorce.

If you wish to schedule an initial consultation please contact me at 212-605-0435 or 516-280-3123.