Skip over navigation

Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

The Determination of Child Custody
Joan B. Kelly

Specificity and Modifiability of Custody and Access Orders

Most custody orders simply state that the father will have "reasonable visitation." They do not specify what the actual monthly visiting pattern, holidays, and vacations will be.41 The failure to develop and specify detailed parenting plans creates uncertainty and conflict between parents, and anxiety and confusion for children about when they will next see the noncustodial parent. In the absence of specific orders, the nonresident parent must make a request to the custodial parent each time access to the child is sought. When the custodial parent remains angry after divorce, such requests are often denied.48,104 If days and times of transitions are included in final divorce orders, noncustodial parents can exercise their parental responsibilities in a predictable manner, without power struggles or conflicts. The absence of specific postdivorce parenting orders is postulated to be a major cause of the diminution in contacts between fathers and children after divorce and father dropout.41 Lack of specificity in visitation also leads to considerable postdivorce litigation (or mediation), particularly before summer vacations and holidays.91 While some attorneys and judges continue to believe that specific parenting plans create rather than lessen conflict, this view is not supported by the experience of mediators and mental health professionals working with divorced parents.17,41,91 Given the opportunity, the vast majority of disputing and nondisputing parents want to develop a structured parenting plan or schedule because they recognize the benefits to their children of a stable, known schedule and lessened conflict, and they appreciate being able to plan their lives with and without their children.41 Nonadversarial forums can help divorcing or divorced parents reach agreements of this kind.

In the past, visiting orders were not generally expected to be modified over time. Every-other-weekend visitation was expected to meet the developmental needs of the child no matter what the age, and of the family no matter how it changed after divorce. Custody or visiting orders could not be changed within the legal system unless they met the test of certain material changes of circumstances specified within each state. Although parents have always been entitled to modify their custody order by private agreement, most states have had limited criteria defining a change of circumstance.32 It is striking that the changing developmental needs of the child do not qualify as a change of circumstance to modify custody or visiting in most states.

In California, approximately half of the contested custody and visiting cases before the court now involve children below the age of seven.57 Thus, it is important to reconsider the circumstances under which parents can petition to change visiting or custody orders. A parenting plan that meets the developmental needs of a fifteen-month-old child will not be optimal for a six-year-old. As statutes have permitted joint custody arrangements and as visiting patterns have expanded, many parents and the professionals that assist them have recognized the need for flexibility in custody and visiting agreements to accommodate the child's changing developmental needs. In mediation, parents will develop a parenting plan tailored to their two-year- old's immature sense of time and anxieties arising from long separations from either parent. Such parents generally agree to shift to a more appropriate plan as the child matures or to return to mediation if necessary. Flexibility is not just a need of young children; adolescents sometimes express a strong desire to change custody, particularly when they have lived in sole custody with one parent. Yet most states do not recognize the child's wish to change custody as a change of circumstance, whether the reason is to develop a closer relationship with the other parent, to remove oneself from the household of an angry, punitive custodial parent, or to escape an alcoholic step-parent. Unless the parents can agree privately or settle in mediation, there may be no remedy for such youngsters.