What Does Custody Really Mean?

If you had to define “custody” how would you define it? Interestingly, Oregon statutes do not actually define sole custody but they do define joint custody.  ORS 107.169 defines joint custody as “an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training.”

There are a number of common misunderstandings about legal custody:

Custody doesn’t impact child support. People sometimes think that legal custody impacts child support. It doesn’t. The parenting plan impacts child support but legal custody doesn’t.

Custody is not parenting time. People often confuse custody with parenting time. Custody literally only refers to decision making while parenting time refers to the actual parenting schedule. To illustrate this point, you can have: Sole custody with a 50/50 parenting plan; Sole custody with an every-other-weekend parenting plan; Joint custody with a 50/50 parenting plan; or Joint custody with an every-other-weekend parenting plan.  When we discuss these two concepts in mediation or Collaborative Law we usually talk in terms of “decision making” and the “parenting plan” or “parenting schedule.”

Custody doesn’t automatically allow someone to move out of state. People often think that sole custody automatically allows a parent to move far away with the children. That’s not the case. In Oregon, if there is a contested move-away situation the court looks at what is best for the child. The assumption used to be that if a parent was moving away to get a better job or to get more family support, that would be good for the parent which would then be good for the child. That assumption is no longer made. Now the assumption is that if a child has a regular relationship with both parents, it is best to ensure that those relationships continue.  Mediation is a great option for addressing move-away cases because it allows parents to focus on creating a workable arrangement for both of them  rather than taking a “win-lose” approach to the situation.

So what is custody?

In the mediation or Collaborative process we don’t usually use the word custody. Instead, we refer to it as “decision making.” The phrase “decision making” is more accurate and less inflammatory than the word custody. When we talk about decision making we typically are talking about religious upbringing, school decisions and elective medical decisions. As we see in ORS 107.169, the major decisions “include but are not limited to” these three types of decisions. Realistically, major decisions include any decisions that are coming up where you end a lot of time thinking about the decision, research different possible options, etc.

How is decision-making addressed in mediation and Collaborative Law?

In mediation we begin by asking the question, “How have you made decisions in the past?” We then ask, “How do you envision making decisions in the future?” Often times whatever people have done in the past they will continue to do in the future, although that doesn’t always have to be the case. For example, it may the case that a stay-at-home parent historically made most of the decisions but now that there will be separate households the wage-earning parent begins to take a more active role.

Regardless of the approach to decision-making, mediation and Collaborative Law provide a process for identifying and discussing interests. When we are discussing something as important as making major decisions for your children, it is important that each parent have a chance to discuss the issue from their perspective and feel heard.

Creating Budgets in the Divorce Process

In the traditional divorce process there is a lot of haggling back and forth about the amount of spousal support that will be paid. We take a different approach in the mediation and Collaborative Law context. In both of these processes we attempt to arrive at a meaningful support arrangement – one that compares need versus ability to pay and seeks to make sure everyone can pay their bills after the divorce. Budgets are instrumental in determining spousal support awards in both mediated and Collaborative divorces.

You have probably heard of budgets before although you may not have ever done one. In short, a budget is simply the total of all the money coming in and all the money going out. Here is a Monthly Budget Form for your convenience. Although this form is fairly comprehensive, you can certainly add to it.

Here are a few things to think about when you are preparing your budget:

Apples to apples budgets. It is important that both people use the same level of budget. They do not need to use the same amounts in their budget, but they do need to be including (or excluding) the same types of expenditures. For example, if one person includes a travel line item in their budget, then the other person should as well. If someone includes voluntary retirement in their budget, then so should the other person. However, the amounts don’t need to be the same. For example, it’s not unusual that one person has a much higher grooming budget than the other. The bottom line is that if someone is using a minimalistic budget, the other person should as well. If someone is using their preferred budget, so should the other person.

Exchange budgets before the meeting. You should exchange your budgets with each other before the meeting in which you will be addressing support. Neither person has veto power over the other person’s budget, but it is perfectly fair to comment on the other person’s budget. Often times people overlook or underestimate certain expenses; having the other person review your budget may help identify these things. Similarly, sometimes people overestimate costs and it fair to point that out as well. The purpose of exchanging budgets before the meeting is so that both people can offer feedback prior to the meeting. You want to go into the meeting with both people satisfied that the other person’s budget is reasonable. Two hour appointments aren’t cheap – you don’t want to spend the meeting arguing about budgets! Instead, you should come into the meeting having already reviewed and commented on the other person’s budget so that you can spend your time actually discussing support rather than arguing about whether someone should have included lawn service in their budget.

One-time expenses. Expenses such as your mortgage or cell phone are easy to identify. What are more difficult are one-time expenses. For example, you only need new tires every three or four years, but when you do they may cost $600 to $800. Similarly, Christmas only comes around once per year, but if you don’t budget for it you could end up with a huge credit card bill. It’s therefore important to think about these one time or irregular expenditures when preparing your budget.

Use post-divorce budgets. Many times people are still living together while they go through the divorce process and don’t have any idea how much life will cost after the divorce. Although this is somewhat challenging, it is very important to try to accurately project what your budget will be after the divorce is final. For example, if you will be moving, try to figure out what part of town you are moving to and how large a place you are looking for. This will give you some idea about what your rent will be and it will also help you begin thinking about the total cost of your utilities. Sometimes people decide that it makes sense to create two budgets – one based on current expenses and one based on their expenses after they move out.

Budgets can be challenging – particularly if you are not used to doing one. However, they are very important in determining an appropriate support award. Since budgets usually take some time to figure out, you should probably start working on your budget sooner rather than later…you will be glad you did!