Why (and when) compromise and flexibility are overrated in Child Custody and Co‑Parenting

Decide – to come to a resolution; from the latin de-, meaning “off”, and caedere, meaning “to cut.”

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Compromise and flexibility are great assets for a co-parent in dealing with a co‑parent or relative caregiver…or are they? Believe it or not, in certain stages of a co-parenting relationship, compromise and flexibility can do more harm than good to the parents and, more importantly, to the children involved.

Wait, but doesn’t being flexible and willing to compromise sound like a good thing in every situation.

Yes, it does.

And you’re saying it’s not in Child Custody and Co-Parenting situations?

No, it’s not, at least most of the time.

So when is it good and when is it not?

Glad you asked…

First, if you’re being effective in your Child Custody matter, regardless of whether it’s a divorce, break-up, paternity case, or a case involving extended family, it should represent, time-wise, a very small percentage of your life and your child’s adolescence. For example, even a hotly contested Child Custody case where I practice might take as much as 6 months to litigate, but most don’t take that long. Thus, with some simple math, we see that in 18 years of childhood, or 216 months, you are likely to spend less than 3% of that time litigating the matter and over 97% living your life as a Parent or Co-Parent.

So there is an important and clear distinction between your time as a Co-Parent in Litigation and your time in day-to-day Life. The line in the sand we need to separate these two stages of our lives is very simple,….

the Decision.

So here is the fortune cookie advice on compromise and flexibility when Co‑Parenting:

Don’t litigate, decide.

This all-important decision comes in the form of your Child Custody order. That order, in turn, either comes from the Judge, after a hearing on all of the pending issues, or, hopefully from a fair-minded agreement of the parties, reached after consideration and consult with a capable Child Custody attorney.

The next section of this discussion focuses on the practical implications of compromise and flexibility during different stages of a Co-Parenting timeline.

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Current and prospective clients routinely ask our firm what they should do about this situation or that regarding scheduling, visitation, day-to-day decision-making, etc. My first response is always this question:

“What does the order say?”

The time for compromise and flexibility in the vast majority of situations should end once the Judge presiding over your Child Custody matter has entered a final order.

However, as I discuss in another article, compromise and flexibility are great during litigation, or, more specifically, during the actual time period between the separation of the parents and the final decision on Child Custody. During litigation, entrenchment in your position and views can and often does cause unwarranted stress on all parties and especially the children involved. Compromise and flexibility take Co-Parents from their dream scenario in their head to something fair to all parties, which also tends to coincide with what’s best for the child.

Don’t get me wrong or overgeneralize from the title of the article, entrenchment during litigation can result in disappointment from false expectations and can appear selfish and unreasonable to the Court, which can adversely affect the Court’s assessment of a parent’s credibility and decision-making ability. An entrenched parent, or one perceived to be so, might end up with less relief than one that sought something reasonable and fair from the beginning. But, and this is important,

once a decision comes down, the time for decision-making is over.

That means that the time for consideration, flexibility and compromise as to the vast majority of day-to-day parenting decisions is also over. This is especially true in schedule and calendaring decisions.

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Case Study:

Johnny’s birthday is Thursday the 22nd. Mom has primary physical custody of Johnny and wants to throw a birthday party for Johnny on the Saturday closest to his birthday, but Dad’s weekend starts on Friday the 23rd as soon as school gets out. Although both Mom and Dad are fit parents, their personal relationship is badly damaged and they can rarely get through discussions without arguing.

Mom would really love to throw a party on Saturday the 24th at a local Chuck E Cheese’s and has been thinking about it for a couple of months. She’s been putting off calling Dad to ask if they can rearrange their visitation schedule or at the very least Dad can bring Johnny to the party.

What should Mom do?

1. First, let’s look at the mistakes she already made at considerable cost to her energy and focus on more important matters. She’s been dwelling over this for weeks if she wants to achieve her goal she’s probably looking at more wrangling and compromise over which weekend to switch and likely an argument about why she would try to plan something on Dad’s weekend anyway.

Assume they work it out and Dad plays it cool and things work out fine. Do we think Dad is not going to use this situation as leverage to infringe on Mom’s time in the future? Do we think Mom, knowing that she can move things around and get things done “despite what the Order says,” is never going to put the family through this process around what should be a fun time for the family?

2. Alternatively, let’s say Mom has long ago heeded the sage advice of her counsel during her Child Custody litigation and has focused her time and energy on living effectively within the bounds of their Child Custody order. She makes sure visiting relatives from her side of the family are familiar with her Custody/Visitation schedule so they come in to town on weekends when Johnny is staying with her. She fine-tunes vacation plans so they don’t infringe on Dad’s time with Johnny. She does not do this out of any particular affection for Dad; she just knows that drawing a hard line for Dad’s time is the best way to draw a hard line for hers.

So, let’s say she can’t do the party the weekend before Johnny’s birthday so she has to do it a week and a half after Johnny’s big day. Johnny is a little disappointed having to wait longer for his shindig, but the price is well worth it because Mom, since she was in complete and eminent control of hers and Johnny’s schedule that weekend. Was able to plan earlier, commit more time and resources to the festivities without fear of interference by Dad.

Bonus Question: Should Mom invite Dad to Chuck E Cheese? Probably, but the key here is that she doesn’t have to and she shouldn’t feel bad about it either way. She respected Dad’s time the previous weekend. Maybe he had festivities he didn’t invite her to. Maybe it is important for Johnny to learn that Mom and Dad don’t do everything together anymore and that’s okay.

The key for this analysis is that Mom operated in #2 on a decision that had long since been made and was the better for it. The world in which she and Johnny live her day-to-day had been determined and she planned and executed according to its opportunities and within its restrictions.

So many parents in so many situations entertain their notion that if they changed things around just a little bit their brilliant plans would work out so much better. This is less than a zero-sum game; this is lose-lose thinking. On one hand, a parent attempts to change things, is unable to do so, and is back at square one with lost time, energy, and a relationship even more damaged than it was before. Inversely, the parent’s attempts at informal deviation from the strict application of the Order work out but after much stress, heartache, argument, and the likelihood of having to settle future scores.

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One dynamic at work here is what is known as the paradox of choice, discussed at length in a book of the same name by psychologist Barry Schwartz. Dr. Schwartz and the research he reviews explore why modern Americans, with more choices and flexibility than any society has had in human history, don’t seem to be any happier than any previous generations, even those living hundreds of years ago. One of the main sources of this unhappiness with choice, as is often discussed today, is the fear of missing out, also known as the potential for trade-offs. For example, we are happy with our new iPhone until the new model comes out and we see one of the other moms at daycare just got it. We are disappointed because of the mere existence of a different, and perhaps “better,” option.

Entertaining the notion of working outside the bounds of your Child Custody order, and tolerating your co-parents attempts to do the same, can lead to the same unhappiness. You, your Co-Parent, and your child will have realistic expectations. Save your decision-making and operating energy for more complex decisions or activities which will bring you and your family much more fulfillment in the long run.

To address specific issues in your case, please Contact Us to schedule an Initial Consultation. This article is meant to provide general information and principles applicable to Child Custody and Co-Parenting. Every situation, however, is unique and nothing in this article should be construed as legal advice or
any establishment of an attorney-client relationship or any form of attorney-client privilege.

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