Custody vs Parenting Time

​I have always been reluctant to post a ‘FAQ’ section to my website.  While it can be useful, it seems impersonal – as if the question that you have deserves a cookie-cutter answer rather than a specific, thoughtful response.  Given the choice, I’d rather answer your question like it is the first time I’ve discussed the topic with a client, rather than like it’s the 400th.  That way, I can be sure I get you the answer you’re after and don’t resort to cliché or an answer that doesn’t really address the reason you asked the question.
 
WITH THAT SAID…
 
One of the most common misconceptions, and therefore one of the most frequently asked questions when it comes to the reality of co-parenting is the question of custody - and in particular, when it comes to the difference between custody and parenting time.
 
Many people, understandably, think of custody as possession.  I have the kids today, so I have possession of them so I have custody of them.  It’s a logical way of thinking about it, but it is also incorrect.
 
Custody is the legal decision-making authority for the child or children.  That means that decisions related to education, non-emergency medical issues, religious upbringing and official residence fall under the purview of the parent with custody.
 
Parenting time is the amount of time each parent spends with the child or children. 
 
It is theoretically possible for one parent to have full custody and zero parenting time, and for the other parent to have 100% of the parenting time but not have custody. 
 
In reality, it doesn’t happen that way, but it is theoretically possible – the two concepts are that distinct from one another.
 
 
Custody:
There are three options for custody in the normal course of things.  Either one parent has custody, or the other parent has custody, or they share joint custody. 
 
Courts cannot order joint custody – it has to be something the two parents agree on together.  If they agree, it can go in a court order, but if they do not agree to share joint custody (decision-making authority) then custody will go to one parent or the other. 
 
The logic here is that joint custody means working together to agree on educational, medical, religious and residential issues…and if the parents cannot agree in advance that they will work together to make those decisions, they are unlikely to be able to actually agree on the topics themselves. 
 
Parenting time:
Unlike custody, which has only 3 options, parenting time can be organized in a nearly infinite number of ways.  While there are considerations that go into making a parenting time schedule that include the best interests of the child, the developmental level of the child and the schedule of the parents, there are few systemic constraints on what can and what cannot be worked into a parenting plan.
 
If you’re looking for a unique way of structuring parenting time, a skilled mediator can work with you to figure out what is good for the kid or kids, as well as what meets your needs.
 
I should mention here that child support calculations are impacted by the parenting plan (not custody), but in the same moment, I’ll mention that I often ask parents to figure out the parenting plan first, regardless of the financial impact, because it allows them to focus on the best interests of their children. 
 
I should also mention that parenting plans are necessarily complex.  There are a lot of questions to ask and answer.  Take Thanksgiving, for example.  Many parents agree to alternate Thanksgiving with the kids.  Seems like a reasonable solution, right? 
 
Some questions to answer about the Thanksgiving parenting time:

• Does this include all of the school Thanksgiving break, or just the day itself?
• What time does the parent who has Thanksgiving get the kid? 
• The night before?
• The morning of?
• What time?
• Who drives?
• What time does the visit end?
• The day after?
• The night of?
• What time?
• Who drives?
• If you’re alternating years, who gets the kid or kids this year?
• What if one parent wants to travel for Thanksgiving?
• Is makeup time appropriate?
• …?

There are a number of things to figure out.  Courts are rightly reluctant to have parties agree to agree to something later.  In other words, saying “we communicate well, we’ll figure it out later” often leads to more litigation, not less.  If you’re communicating well now, it might be worth it to strike while the iron is hot, and communicate in detail about what Thanksgiving looks like. 
 
This doesn’t mean, by the way, that you are stuck with whatever you come up with.  There are no parenting plan police.  If you mutually agree to do something different, you absolutely may.  We drill into this level of detail so that if and when you can’t agree on something else, you have a complete plan to fall back on.
 
 

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​Alex Tillson is an experienced family mediator in the Portland, Oregon are.  He specializes in domestic relations issues such as divorce, custody, parenting time and other family disputes.  You can reach him by calling 503 543 1932 or at [email protected]