What Custody Arrangements Miss: The Mental Load

by
 Elizabeth Erickson
October 15, 2020

What Custody Arrangements Miss: The Mental Load.

Elizabeth Erickson

As a mother you are constantly juggling millions of incremental tasks – from the minute details to the big picture decisions of your children’s lives. Matrimonial attorney, and Divorceify professional, Elizabeth Erickson, discusses a nuance that we often don’t consider, but should, when designing co-parenting agreements and custody arrangements.  It’s called the “mental load.”  Elizabeth gives us insight into what the “mental load” is, and why and how we should address the “mental load” when creating co-parenting agreements. This article originally appeared on Caroline Zwickson’s blog.

A few years ago, I received an email from one of my very best girlfriends, a rockstar lawyer and fellow working mom.  The email, bearing the subject line “Mental Load”, contained only a link to a comic entitled “You Should have Asked” attributed to French cartoonist, Emma.

The article inspired an impassioned and collective “pen-dropping” moment (that one second when everything suddenly comes together so clearly and it’s so obvious that you literally drop your pen!)

It was the first time the concept of the “mental load” was articulated for me, although indeed, as a full-time attorney, mother, and wife in New York City, she and I were already very well acquainted. 

Since then I have had many many iterations of this same conversation among the various hives of women in my life about the “mental load”.

THE “MENTAL LOAD” IS UNIVERSAL, EVEN AMONG THOSE WHO HAVE VERY ACTIVE, INVOLVED, AND PRESENT PARTNERS, AND IS NOW COMMON PARLANCE AMONG MOTHERS (BOTH WORKING AND SAHM), ALONGSIDE (OR, PERHAPS RATHER, IN DIAMETRIC OPPOSITION TO) “SELF CARE”.

On par with these often animated discussions with my favorite women, was my ability to finally give form to an issue that had been tugging along the edge of my thoughts when contemplating child custody and parenting time for more than 15 years, long before I had my own children, starting while I was working as a judicial law clerk in the Family Division of the Superior Court in New Jersey (aka Divorce Court); a major dynamic of parenting was being overlooked when discussing co-parenting in the context of a divorce. 

That is, how can one parent reasonably be expected to cede responsibility for not just the children, but the entire family, when what she does is manage no less than one million incremental tasks, decisions, and plans every day.  Yet this is what we demand that mothers do in every instance when establishing a joint or shared custody arrangements and very often, parenting time schedules, as well.  

First, a quick tutorial about custody and parenting time.

Generally, “custody” is broken into two separate areas:

1) Legal custody = decision making; and

2) physical or residential custody = where children live most of the time. 

Joint custody means that parents are expected to make decisions related to their children together.  In the extreme, joint custody means that they must mutually agree on all major decisions related to the children.  In contrast, sole custody means that one parent has the authority to make decisions. 

However, it is important to know that the contours of joint and sole custody vary by state.  For example in New York, there is no statutory definition of joint custody, or sole custody for that matter.  The respective role and responsibility of each parent must be delineated in each instance by the Court in a Custody Order or by a written agreement between the parents.

“Parenting time” (or parental access) refers to how children divide their time between parents – the actual schedule of when the children will be with which parent.

FOR MANY MOTHERS IN A DIVORCE, THE VERY CONCEPT OF JOINT LEGAL CUSTODY, AND/OR A PARENTING TIME SCHEDULE THAT REQUIRES THEIR PARTNER TO ASSUME MANAGERIAL RESPONSIBILITIES FOR THEIR CHILDREN FEELS DIRECTLY AT ODDS WITH THEIR MENTAL LOAD.

At first, and perhaps for a while, it will be.

My clients who are mothers uniformly insist that her co-parent will be unable (or unwilling) to shoulder these responsibilities without her nudging and instruction.  It is not because they do not want to share, but rather they have a legitimate concern that their partner does not have capacity to think through everything that needs to get done, fail to take the initiative on certain tasks, or that things will be forgotten or left undone.

On more than one occasion, I have counseled mothers grappling with the notion that their parenting time schedule will mean that their partner will have to arrange for after school transportation to soccer practice – and also be prepared with the new uniform and cleats! 

After perhaps years of managing every incremental task that it takes to get a child to that first soccer practice (from the first identifying the child’s interest in the sport, to researching the available club options – that both fit with the child’s schedule, as well as any number of the child’s friends, to remembering the registration deadlines, paying, arranging transportation, getting the uniform, then actually ensuring the child arrives on time in the correct place, and  host of other minute decisions and undertakings along the way) how can her partner possibly be trusted to get all that done?  

THE PROBLEM IS THAT A MOTHER’S MENTAL LOAD IS SIMPLY NOT CONSIDERED AS A FACTOR IN DETERMINING CUSTODY OR PARENTING TIME.  IT IS NONETHELESS A DEFINING CHARACTERISTIC – IF NOT THE THE DEFINING CHARACTERISTIC – OF EVERY COPARENTING RELATIONSHIP.

Any shared custodial arrangement inherently mandates a recalibration of the mental load.  However, under a court-ordered allocation of parenting responsibility, business as usual is simply not feasible, especially when your children will be spending several days, or even a week, at a time away from you.  Below I offer a few suggestions to achieve this:

  • Consider using decision-making “spheres”.
    In this arrangement, parents divide decision-making authority by topic.  For example, one parent will be responsible for educational decisions while the other parent might be responsible for religious decisions.  For most parents, such an arrangement is unworkable as it is too difficult for a parent who is so involved with a child’s life such that he or she has the monopoly over one area of that child’s life to just ignore decisions related in the other “spheres”.  Yet if you and your partner have organically allocated responsibilities in one area or another, then it is an option worth considering.
  • Among many other factors to weigh in considering a settlement, rather than letting a court decide parenting issues, is that a settlement affords the control to explain and define each  parent’s duties with as much level of detail as you want.  For example, a Court Order after a trial might state nothing more than “the parents will share joint custody of their child, meaning that they shall discuss and agree upon all major issues related to the child”.  In contrast, an agreement between parents can specify exactly how the parents are to communicate, create a timeline for making decisions, dedicate what constitutes a “major decision” while providing who is responsible for more minor or day-to-day decisions, etc.  
  • Remember that words matter.  It is “parenting time” (or “access”), not “visitation”.  Parenting time is time to do parenting tasks: helping with homework, shopping for sneakers, attending doctors appointments, driving to piano lessons, sitting through those piano lessons, enforcing household chores.  “Visitation” is essentially an outdated way of viewing how a child spends time with each parent – one which denotes a special reserved time for fun activities.  Or going to see someone in jail.  It frees the parent being visited from any obligation and in turn, places the job of parenting with the residential parent alone.  
  • Similarly, when speaking with your co-parent, the children are “our” children, not “my children”.  This is a hard one to swallow, especially when it involves an issue over whose solution should prevail, ie. who knows what is best.  But for the mother who carries the mental load, switching the pronoun can be used to telegraph to the other parent that, with their shared responsibility comes shared obligation.  It is a first step toward shifting some of that mental load.

Ultimately, with time and adjustment to the schedule many of my clients have found a certain levity in the delineation of parental tasks stated in a well-drafted custody agreement.

Best,

Elle



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