Sharing custody at Halloween doesn’t have to be all “Double, Double, Toil and Trouble!”

The entire month of October is such a fun time of year for children.  It is a month full of fall festivals, pumpkin-picking and hayrides, topped off with dressing up in a costume and trick-or treating in the neighborhood on Halloween.  It seems that every year, however, some children’s Halloween fun gets spoiled because their parents have a disagreement over some Halloween-related matter.  If you think you are going to experience some problems this Halloween, do yourself (and your kids) a favor and talk to your custody lawyer about them ahead of time.  In the meantime, here are some tips:

Be Specific in Your Custody Agreement to Avoid a “Ghoulish” Argument

Make sure that your custody agreement regarding Halloween (and all other  holidays) clearly states which parent is to have the children on Halloween, and at what times.  Depending on where you reside, your agreement might need to specify whether “Halloween” means October 31, or whether it means the date your neighborhood has trick-or-treating.  If the agreement is not clear, talk to your child custody lawyer about this.

Lack of Communication is a Nightmare

If you and the other parent are going to take the children trick-or treating together, make sure to communicate about the details in advance.  Know which neighborhood you are going to take the children trick-or-treating, where you are going to meet, which one of you is going to get the kids ready, etc.  Avoid a potential situation where you and your ex are left arguing in front of the kids because you weren’t able to communicate effectively.

Don’t be a Petty Pumpkin!

Try not to argue about things like Halloween costumes.  If your ex chooses a costume for your child that you absolutely hate, then pick your own costume and go trick-or-treating on a different day in a different neighborhood if it is that important to you. What good would come out confronting your ex about their terrible (to you) choice of costume?  Nothing, except hard feelings.  When co-parenting, you must pick your battles.  This is true for separated and intact families alike.

Avoid Howling at the Other Parent

If it is your ex’s turn to have the children for Halloween this year, and you just know that he or she will allow the kids to stay up too late, eat way too much Halloween candy, watch scary movies that you don’t approve of, etc., it’s time to get over it.  Unless there is a real safety concern, you can’t control what happens during your ex’s custody time.  Every parent has their own parenting style.  Different doesn’t always mean wrong.

Don’t be Afraid to Take the Big Issues to Court Ahead of Time

If there is a bigger issue, such as one parent doesn’t believe in celebrating Halloween for religious reasons, then you must speak with a child custody lawyer.  The custody lawyer would probably tell you that in most cases, parents share legal custody, meaning that they both have to agree on legal custody matters.   While a judge may grant one parent legal custody to make decisions on behalf of the children in very specific situations, it is unlikely a judge will do so when there is a dispute about religion. Lots of parents have different religious views.  In those families, it is actually a benefit for the children to learn different views, and even more of a benefit when they observe their parents tolerating and even respecting each other’s views.

So this Halloween, don’t be haunted by conflict.  Communicate with the other parent in advance to make sure you are both on the same page.  If you expect that there will be issues, talk to your custody lawyer.

In Pennsylvania, until the 1970’s, when parents of children under the age of 18 separated, the “tender years doctrine” applied.  That meant that there was a presumption in the law that children “of tender years” were better off with their mothers as their primary custodians.  It also meant father were relegated to the role of “visitors,” and that the custody arrangements for fathers were known as “visitation,” generally something like every other weekend and a dinner visit or two during the week, and some sharing of holiday custody.   In order to obtain  “primary custody” of his children, a father had to prove that the children’s mother was “an unfit mother.”  Do these phrases sound familiar?  Well, they shouldn’t, because for the last 40 years or so, the “tender years doctrine” has been outlawed in Pennsylvania, since PA adopted an equal rights amendment to its constitution.

That is not to say that PA courts enthusiastically accepted the demise of the “tender years” doctrine automatically.  The same judges who had been automatically awarding custody of children to mothers were still on the bench, some of them for many years thereafter.  It was as if even though a new custody law was adopted which required that “the best interests of the child” be considered by the courts in awarding custody, the scales seemed to tip in favor of mothers for quite a while.   After all, mothers could proudly claim, they had been the stay-at-home parent for the children for their whole lives, and the fathers didn’t know the first thing about parenting.  Well, that was then and this is now.

As we know, married women with children have been entering the workforce in great numbers during the last 40 years.  More good-paying jobs have opened for women, and women have for some time been a growing part of college and professional education students.  When I began my college education many years ago, the ratio of “boys” to “girls” on campus was something like 4 to 1.  Now is it often 50-50, and in some areas of higher education women outnumber men.  Men have in many cases stepped up to the task of co-parenting children with their wives.   However, another trend that has affected families is the sheer number of divorces and out-of-wedlock births which have made the old profile of mother-father relationships nearly obsolete.

Judges have changed too.  The old judges have died or retired, and the new breed of judges, raised in the latter part of the 20^th century or the first part of the 20^th century, don’t usually tip the scales in favor of mothers any more.  Despite the shrill claims of “Fathers’ Rights” groups, there is no presumption based on gender.  Ask any lawyer who practices family law primarily (or solely); they will tell you that when they first meet a judge or other court officer in a custody situation, the judges expect them to offer some kind of equally shared custody arrangement between mother and father, or be prepared to explain/fight for some other arrangement.   The “Ackerman plan,” or 5-5-2-2- custody arrangements, came into vogue around the turn of the century, and these have been enshrined as ideal custody arrangements for all children, along with shared legal custody (shared decision-making) of the children.

.  Another development which pushed this movement along was the adoption in PA of modified child support guidelines that gave a break in child support payments to support obligors with 40% or more overnights with the children.

So this social experiment has been happening for some time, and how it is working?  As lawyers concerned for the welfare of children involved in custody disputes, our observation is that the results are mixed at best.  We are delighted when we are able to assist an involved and caring parent in obtaining substantial custody time with the children, be it the mother or the father. What we are less delighted with is that the less experienced judges whom we appear in front of in child custody cases seem to have adopted a general presumption that equally shared custody is best for everyone. What that means is that when equally shared custody does not appear to fit this family well, we have to work (and spend large quantities of clients’ money) to overcome this unspoken “presumption.”  It was not contained in the recently-modified PA custody law. One size fits all is not for every family.  What the 5-5-2-2 schedule means for children is that they have a lot of adjustments to make, and they bear the brunt of the going back and forth between households several times a week.  In a recent article in the local legal journal, a Pittsburgh area family lawyer recounts the experience of being one of those children in a situation where the parents or the court adopted a 5-5-2-2 custody schedule for her and her younger siblings.  In her case, her parents refused to communicate directly, and it put the crushing burden on her, a young teenager, trying to find her place in the world, to make any schedule changes or accommodations between the parents, to make this schedule “work.”  In her mind, because of non-cooperation and non-communication between her parents, this schedule was unfair to the children.  Don’t get me wrong, there are lots of advantages to children of a custody schedule which permits them substantial contact with both caring and loving parents, when they are able to cooperate.  Children’s mental health is more stable when both parents are actively involved in their lives. It’s when one parent is so angry or bitter at the other parent and insists on sharing “his” or “her” side of the marital dispute with the children in an attempt to turn them against the other parent, that this kind of arrangement breaks down.  Cooperation and co-parenting is a must for shared custody arrangements to work well for the children.

It would be good if judges, rather than reflexively suggesting an equal overnight custody schedule for every family, took the parents’ ability and/or willingness to cooperate and communicate into account more often, in thinking about custody arrangements.   That would be in the children’s’ best interests.