“What custody schedule do you want?” In a prior blog, we noted that this is a trick question because it distracts people from their life goals and focuses them on legal outcomes, as though they are goals. It is also a trap question because it reframes a non-zero sum game into a zero sum game. A zero sum game is a game between two people over a finite payoff. I put $100 on a table and tell Player 1 that she gets to decide how to split the pot and if Player 2 accepts, they both get their portion of the pot; if Player 2 rejects the split, neither player gets anything. This is a zero sum game because the total payoff is limited to $100. Every dollar one gets, the other loses. Zero sum games promote competition, sometimes getting really nasty, and conflict. A non-zero sum game does not have a limited payoff. I put $100 on a table and tell Player’s 1 & 2 that they get to spend the money on a date and I want them to discuss what they are going to do. Same amount of money but now the two players try to maximize the benefit to both of them. Non-zero sum games promote focusing on goals with communication and cooperation.
Custody schedules are zero sum games; but parenting together is a non-zero sum game. Before a separation, parents rarely thought of parenting as a zero sum game. Who took the child to the doctor was not a prize. It was a duty and sometimes an inconvenient chore. Who helped with homework was not a competition or conflict. Few if any married parents could do more than make wild estimates of what percentages of the time they were responsible for the care of the children. Then they enter the legal system, which counts overnights, a limited payoff. Parents are told to divide those up – creating a zero sum game and promoting competition and conflict. They then are criticized for being competitive and having conflict.
“But wait,” you say; “parents have to divide the time!” Yes, but is that a zero sum game? When we send children to school or soccer we are dividing their time and losing time with them, but we see that as adding to their lives, not as a loss. When mom takes the children skiing and dad stays home doing yard work, they do not see themselves as in a zero sum game. They do not compete or have a dispute. Negotiations over custody schedules could look like the $100 for a date game; it could be a non-zero sum game. The task no longer is how to divide overnights; it is how to organize the parenting, given the new condition of two homes, in order to maximize benefits to the children and the parents. The competitive focus on dividing time with children should be a cooperative focus on how to actively include both parents in the children’s lives. The latter can be accomplished in any custody schedule.