• Rotating Custody: A Fresh Viewpoint
  • December 21, 2005 | Author: Jaana T. Moisio
  • Law Firm: Hodgson Russ LLP - Boca Raton Office
  • In some Florida divorce cases, traditional models of child custody are not adequate for the psychological and emotional development of the children. Although many courts still order conventional custody arrangements under which one parent has a larger portion of the children's time than the other parent, and his or her home is designated as the children's primary physical residence, a newer -- and, many believe, more progressive -- model of child custody has emerged.

    This model, called rotating custody, is an arrangement that allows the children to live with both the mother and the father on an equal annual basis. As with most aspects of divorce, rotating custody can be extremely complex. Knowing the history and psychological research behind rotating custody -- along with understanding the importance of expert intervention and expert witnesses in the development of rotating custody plans -- can help divorcing parents turn a potentially difficult process into a successful rotating custody arrangement.

    Proponents of rotating custody note that substantial parent-child time after a divorce can minimize a child's pain and promote a strong parent-child relationship. Findings from research and psychological projects in several different states indicate that, in most cases, children benefit from post-divorce arrangements that foster continuing relationships with both parents and more contact with fathers than has been the norm in planning custody and visitation arrangements. They state that an arrangement that maximizes the time spent with both parents generally enhances a child's feeling of well-being and stability following a divorce by preventing a drastic reduction in time spent with one parent and by helping to reduce the sense of void and loss that can be produced by such a reduction. Increased parent-child interaction creates higher-quality parent-child relationships than would otherwise be possible because the parents are able to engage in a wider range of care-giving and other activities with the children. More specifically, if both parents are involved in morning and nighttime routines, meals, homework, contact with peers, recreation, limit setting, and home discipline, relationships with both parents are bolstered and the child's adjustment is enhanced. Some therapists even advocate that divorced parents who do not exhibit adequate parenting skills should be allowed the opportunity to develop them, because of the demonstrated value to children of having both their parents actively involved in their lives.

    According to the traditional view of rotating custody in Florida law, a child's best interests are served by being able to identify one home as his or her residence, because the child's feelings of security are enhanced. This traditional view -- adhered to by expert witnesses, lawyers, and judges over the years -- has been so strong that case law has established that rotating custody is presumptively not in the best interest of children. One recent study of judicial orders reveals that judges ordered rotating custody in only 12.3 percent of the cases brought before them. In addition to the presumption against rotating custody, the "tender-years doctrine" has traditionally discouraged rotating custody orders. Under this doctrine the mother was given preference when designating the custodian of a young child.

    Although the tender-years doctrine has ostensibly been rendered obsolete in Florida, it likely retains some influence in practice, because age has been held a proper factor to consider in determining custody. An unspoken social bias for mothers to provide care for young children still exists among many child custody evaluators and judges.

    The presumption against rotating custody has been applied by the courts with the understanding that some circumstances may justify such an arrangement. In determining whether such circumstances exist in an individual case, courts have considered the following factors:

    • the child's age and maturity;
    • whether the child is in school;
    • the proximity of the parents' residences;
    • the child's preferences;
    • the disruptive effect on the child;
    • the reasonableness of the periods of time spent with each parent;
    • the periods of custody relative to divisions in the child's life, such as the school year; and
    • the parents' attitudes toward each other and how they might affect and be perceived by the child.

    Based on these factors, some cases have upheld rotating custody.

    In applying the last factor -- the parents' attitudes toward each other -- the district courts of appeal have differed as to whether hostility between the parents should weigh in favor of rotating custody or against it. In the Second District, animosity between the parties has been a factor weighing against rotating custody. The Second District based its position on the fact that hostile parents may have difficulty making joint decisions concerning the child. The Third District also considers parental animosity to weigh against rotating custody. In contrast to the Second and Third Districts, the First and Fourth Districts consider hostility between the parents as justification for rotating custody.

    Call in the Experts

    The use of mental health practitioners and experts can be essential for a smooth transition into a rotating-custody arrangement. Mental health professionals can play many roles in child-custody dispute cases, such as providing consultation for family law attorneys and their clients, aiding guardians ad litem, conducting custody evaluations, working as mediators, and giving expert testimony.

    Perhaps the most fundamental of these roles is as a counselor to divorcing parties. As attorneys well know, separation and divorce often overwhelm clients emotionally, causing them to be preoccupied by their sadness, anger, and uncertainty, and also rendering them emotionally unavailable to sooth their children's distress. All too often, parents' anger and grief cause them to behave inappropriately and exacerbate their children's problems. Divorce literature such as Making Divorce Easier on Your Child: 50 Effective Ways to Help Children Adjust, by Nicholas Long and Rex L. Forehand, or How to Help Your Child Overcome Your Divorce: A Support Guide for Families, by Elissa P. Benedek and Catherine F. Brown, can provide helpful suggestions. Further, parents may meet with mental health professionals knowledgeable about the impact of divorce on families to help them understand the effects of the divorce on children.

    Developing the Right Plan

    Parents involved in divorce need to be aware of the tremendous sense of loss and insecurity their children experience due to the absence of family routines and seeing both parents at home. Parents also need to realize their primary goal should be to restore their children's sense of safety and of being loved by both parents. Toward that end, it will help if parents develop a co-parenting plan that maximizes closeness with both parents as early as possible, minimizes parental conflict, and avoids litigation. Developing such awareness in a divorcing parent is often easier with professional intervention on a personalized basis.

    The mental health professional can explain how rotating custody can often help relieve a child's sense of loss of the noncustodial parent. If the parent appears receptive to discussion of rotating custody arrangements, an attorney may suggest the involvement of a mutually agreed-upon mental health professional to help both parents plan rotating custody. This psychologist or other professional can help the parents hammer out some of the difficulties in planning the periodic transitions of their children between their households.

    If one parent's desire for rotating custody must be litigated due to a lack of support by the other parent, or even if the parties have agreed to rotating custody, expert testimony can be crucial to obtaining approval. In some Florida cases, the courts relied on expert testimony in determining that rotating custody was in the best interests of the children and that the expert testimony received on the children's custody properly supported the existence of the requisite special circumstances.

    Increasingly, expert testimony supports the view that, as a general proposition and not as one indicated by special circumstances, the optimal custody arrangement is rotating custody.

    Ideally, all parents would formulate and implement a parenting plan that is in their children's best interests -- one that would allow their children to feel secure with and loved by both parents and free from being in the middle of parental disputes. In such an ideal world, rotating custody between psychologically healthy parents who are able to set aside their anger, frustration, and disappointment with each other and tolerate each others' differences in parenting styles may be in the best interest of the children.