Americans have mastered the friendly divorce—but really need to get a handle on custody

After the uncoupling, there’s still the co-parenting.
After the uncoupling, there’s still the co-parenting.
Image: Photo by Colin Young-Wolff /Invision/AP
We may earn a commission from links on this page.

The American marriage has been in trouble for a long time. Marriage rates among the working class have declined dramatically and single parenting “is becoming the norm,” according to a recent Washington Post story. Half of all childbirths are now outside marriage and a staggering percentage—more than half—are reportedly unplanned.

Isabel Sawhill, author of several books and a senior fellow at the Brookings Institution, has a new book out questioning the survivability of the institution of marriage as we know it. In Generation Unbound, Sawhill argues that it makes economic sense to preserve but redefine marriage. In the future, people may marry or otherwise express a commitment to one another, but they will live in separate places. Maybe they will wed with an upfront, imposed time limit, such as a five-year contract to be in a committed relationship, at which time the union will be reassessed.

Although Sawhill’s focus was the relationship between single-parenting and an increase in child poverty, the questions she poses are valuable for all parents to consider. At a minimum, the economist suggests adults follow an “ethic of responsible parenthood,” defined by her as an updated social norm combined with a greater reliance on the most effective forms of birth control.  As a divorce lawyer for more than 10 years, I had a lightbulb moment. This concept and the plain meaning of the term has application far beyond the economics of poverty. It very much applies to cases I handle in my law practice each and every day.

Stop and think about how you would define “responsible parenthood.” My guess is that it will be defined differently depending on your situation. I can almost guarantee that a married parent might define it differently than a single mother getting no child support or a recently divorced father whose ex-wife is trying to turn the children against him.

Remember the movie Kramer v. Kramer?  It was wild back then to even fathom a father having custody or taking care of a child full-time. While we as a society are certainly making progress (think about the growing minority of stay-at-home dads now), I bet if I were to take a poll of all the American children whose parents do not live together, the overwhelming number of them would say that they saw their dads on alternate weekends, if they were lucky.  While the bulk of cases handled in my office include involved dads who usually want way more than just alternate weekends, there is still a broad spectrum when it comes to defining the word involved.  Other attorneys have written on the topic of the “Disneyland dad,” “Uncle dad,” or “weekend parent.”

I’m happy to report those kinds of dads are going out of style.

Aside from making appropriate financial provisions, how can soon-to-be-divorced parents, or parents who were never married, use this “responsible parenthood” ethos to maximize a healthy outcome for their children? If Sawhill is right about the future of marriage, then there might come a time when children feel no difference being children of divorced parents versus being children whose parents are married but who live in different houses. How can we make this the norm rather than the exception for the children of divorce?

Perhaps in 50 years (if I’m still practicing law then), happily married or committed couples who live in separate residences will come to me to help work out a time-sharing schedule, as Sawhill predicts. Until then, the question of “what is a typical custody schedule?” is most often asked by divorcing parents or expecting/new parents who are not married and who may or may not be getting along at that point.

Many divorce lawyers and other divorce professionals in the US and UK swear January is one of their busiest months. I personally attribute it to people either wanting to make good on their new year’s resolutions, or that they were waiting until Christmas was over so as not to have to “ruin” it for the kids.

Parents’ preconceived notions of what’s a “normal” custody arrangement vary widely, but are usually dead wrong and dependent on how many divorced people they actually know, which is a terrible barometer. For example, some dads automatically assume they are only getting every other weekend with their kids, even if they are super-involved and really would like to parent their children 50% or more of the time. That usually happens when the only men they know who have gotten a divorce are ones who have settled on only having their children alternate weekends. Sometimes moms will automatically assume that because they are “the mom,” they will have primary custody. Other parents—those who have friends who do this—will start out assuming that both of them will have equal time or very close to it, because they believe it’s best for the children, and they can both acknowledge that the other is a loving and capable parent. Same-sex couples can have even more challenges, particularly if they failed to take the appropriate steps to get themselves both listed as the legal parents of their child(ren). Otherwise, the issues are the same.

It’s hard to say what is most “popular” or “typical” in terms of time-sharing schedules because we try in earnest to tailor custody arrangements towards what is really workable for each family. Often, parents will try things temporarily to see what works, and frequently this becomes the permanent arrangement. Sometimes the converse is true, and the schedule is not working for a variety of reasons, so changes need to be made.  Here are the most frequent schedules I see in the custody agreements I negotiate, broken down by whether parents can/want a near-equal schedule or cannot have/do not want a near-equal schedule:

50-50 Time-sharing

Some popular schedules to consider for parents looking to share time equally, or near-equally:


For example, Mom has kid(s) every Monday after school/camp until Wednesday morning return to school/camp, Dad has kid(s) every Wednesday after school/camp until Friday morning return to school/camp.  The parents alternate weekends, which begin right after school/camp on Friday and end on Monday morning return to school/camp.  This way, each week the kid(s) are with one parent for two days, and the other parent for five days.  The children know where they will be each and every week night and their time flows naturally into or out of weekends, so there is less back and forth.  Parents also like this because there is virtually no contact between them and there is never the issue of one parent returning the child late, etc.  Plus, both parents are involved with taking the children to school, which makes them both happy and alleviates a lot of complaints about one parent not sharing school information.

2. “Ping-pong”

I came up with this name myself as I don’t really love it and many parents have complained that they don’t want their children back and forth like ping pong balls (which is why I like the 5-2).  However, some parents don’t want to go too long without seeing their kids, so they do something like Monday and Wednesday night with Mom and Tuesday and Thursday night with Dad, and then they alternate weekends as described above.  The truth is that most kids are very flexible.  If the parents are ok with this schedule, and they make it so that their kids have enough clothing and school supplies at each residence, the kids will be fine.

3. “Alternating weeks”

Kind of self-explanatory.  One week with Mom, one week with Dad.  Rinse and repeat. It’s personally not my favorite schedule as many psychologists will recommend that young children not go seven days without seeing the other parent.  However, this works well for many parents, including those who do have to travel frequently for work and have flexibility in scheduling those trips.  This way, they can travel on the weeks they know the child(ren) are scheduled to be with the other parent.  This schedule would also work very well if you were sharing custody of a pet.

Obviously these can be tweaked to fit work schedules or other personal preferences but these are the ways to achieve 50-50 access.

Other popular scenarios that are not 50-50

In many cases, 50-50 time-sharing just is not feasible or is not in a child’s best interest. It could be for a variety of reasons, including but not limited to: work schedules, geographical constraints, certain learning or emotional disabilities on the part of the child that make consistency and stability much more important for his or her success, inability of a parent to provide appropriate accommodations for the child in their new residence, etc. As stated above, we really try and tailor arrangements to each family’s circumstances and can get as creative with the details as the parents will permit.  That being said, here are the most common arrangements for when 50-50 time-sharing is not workable or appropriate.

 1. “Standard alternating weekends”

Non-custodial parent gets alternate weekends.  Most also add either one dinner visit each week or one overnight each week (or one dinner visit one week and an overnight the following week).  In this scenario, weekends usually are defined as Friday at 6pm to Sunday at 6pm and there is no reason pets couldn’t be included in this too.  I usually describe this is the bare-bones schedule that every non-custodial parent would be entitled to get if they went to court, assuming they were able to appropriately care for a child and did not have any significant problems.

2. “Extended Weekends”

Non-custodial parent might get alternate weekends, but the weekend would begin Thursday after school/camp and end Monday morning at camp/school dropoff.  This allows for some contact between the non-custodial parent and the school.  Many in this situation would have every Thursday night be an overnight with the non-custodial parent so that there is consistency and this way parent and child don’t go more than a week without seeing one another.

 3. ”Flip-Flop Summer”

This is not as popular of a schedule, though I think it should be considered more often.  If there is an alternating weekend schedule or extended weekend schedule for the purpose of providing consistency or so that the child can more easily attend school [sometimes parents don’t live close to one another so too much time-sharing can be difficult], then the schedule will flip-flop in the summer.  This gives the child a lot of meaningful time with their other parent in the summer when school is not a concern. Obviously this does not work if/when the child is older and goes to overnight camp.

None of these schedules contemplate more complicated issues, like a parent’s psychiatric disorders or substance abuse problems, prior physical abuse or Orders of Protection, in which case none of these cookie cutter schedules are going to work.  Supervision will likely be required in many, if not all, of these scenarios.

Coming up with the right schedule is always going to be hard at first, especially for parents who are used to seeing their children every day.  Children without special needs or issues are usually very flexible and can adjust to anything, so long as their parents are working together in some fashion to support the new schedule.  I would like to think that if Sawhill is eventually right, more people will approach parenting with an “ethic of responsible parenthood,” which could be a game changer.