When we speak of child custody, there are two types. There is legal child custody which has to do with decision making, and there is physical child custody which has to do with where the child resides. You may have heard of the phrase “joint custody.” This has nothing to do with where the child resides. It is used in connection with the concept of legal custody. In making a joint custody arrangement all major decisions have to be discussed and, in a perfect world, agreed upon by the parents. Major decisions are those involving legal, educational, religious and medical.
The following are examples of major decisions which would require discussion between the parties:
1. Whether the child should be raised in a particular faith;
2. Whether a child should be baptized, confirmed or bar mitzvahed;
3. Whether a child should be advanced or left back a grade in school;
4. Whether a child should have orthodontia or any other surgical procedure;
5. What college a child should attend;
6. Whether a child should be permitted to obtain a drivers license at a certain age.
Joint custody is a two-step process. The first step is that the noncustodial parent (the party with whom the child is not living) must be notified and involved in the decision-making process. The second step is whether his or her agreement is necessary. Ten years ago, it was understood and case law was quite clear, that joint custody required the consent of the noncustodial parent. In effect, the noncustodial parent had a veto. If the parties couldn’t agree, the custodial parent had to seek a court order to approve his or her decision. So, joint custody required notice to and consent from the noncustodial parent.
Over the last ten years, joint custody has evolved to the point where there are different definitions. Some cases still require the requirement of notification and consent. Other cases require notice and a good faith effort to come to an agreement, but in the absence of an agreement, the party with whom the child or children reside has final decision making. This is the more modern and usual approach. Some courts have gone so far as to award “spheres of influence.” For example, one party can be empowered to make medical decisions and the other party can be empowered to make educational decisions. In high conflict cases, the courts sometimes appoint a parent coordinator -a third party, such as a therapist or psychologist trained to mediate custodial disputes. The purpose behind the parent coordinator is to provide for a prompt, less expensive resolution. In theory, the concept of a parent coordinator is very attractive. In practice, it has proven less beneficial than hoped. That is because the courts only turn to a parent coordinator in high conflict cases (where the parties seem to fight over everything). The problem is that the parent coordinator cannot be delegated the authority to make decisions. He or she can only listen and make suggestions. It is the court’s function to decide matters; not the parent coordinator. Thus, in actual practice, I have found whatever party is unhappy with the recommendation of the parent coordinator, simply refuses to abide by the recommendation, or does not even participate in the process at all.
In a separation agreement, the parties can define for themselves how to proceed in the event of a custodial disagreement. For example, parties can provide that they must first go to a mediator to attempt to resolve their differences before either can file a petition in court. The parties can delegate the decision in a dispute to an agreed upon third party. For example, if the parties can’t agree on an educational matter, they can agree to have the decision made by an educator or school administrator both respect. Similarly, if the parties can’t agree on a medical course of action, they can delegate that decision to a medical provider both respect. And, of course, the parties are free to delegate final decision making to each other. As indicated before, one parent can be the final decision maker regarding educational matters and the other regarding medical matters, etc.
The important thing to keep in mind is that there is no one agreed upon definition of joint custody. One must be careful in negotiating a custody arrangement, whether in court or in a separation agreement, to be clear as to whether an agreement must be reached or whether a good faith effort is all that is required.
Separate from legal custody is the concept of physical custody. This has to do with the parent whom the child resides. Twenty years ago, it was common for the noncustodial parent to have visitation every other weekend, and perhaps a dinner visit one night during the week. By today’s standards, this is considered draconian. Today, it is more commonplace to have shared custody arrangements, particularly as children enter their teen years. Shared arrangements can be one week with mom and one week with dad, which results in an equal split of time. Another common arrangement is the 5/5/2 approach. Here one parent, let’s say, mom, has every Monday and Tuesday and dad has every Wednesday and Thursdays nights. The parties alternate weekends from Friday after school to Monday morning when the child or children are dropped off at school. This results in five days in a row one week and two days the next week. For example, in week one, mom would have the child or children on Monday and Tuesday nights and take the children to school on Wednesday morning. Dad would then have the child or children Wednesday and Thursday. If the weekend is mom’s, she has the children, Friday, Saturday, Sunday, Monday, and Tuesday. Dad then has them Wednesday, Thursday, Friday, Saturday, and Sunday and brings them to school on Monday. The difference here is that neither parent is going more than five days without seeing their child or children.
Of course, any visitation schedule or shared parenting schedule is going to depend upon the work schedules of the parents. It may not be possible for one party to share residential custody with the other. It may be necessary to do a more traditional arrangement, such as alternate weekends and to supplement same with one or two nights during the week which, depending upon the children’s ages or schedules, could be dinner visits or overnights.
No matter what arrangement is agreed upon or ordered by the court, it will only work if the parties cooperate with one another. There are occasions when changes have to be made due to work schedules, sickness or other unforeseen events. The parties can make it work or they can make work for their lawyers.
Mark D. Stern has extensive experience in Child Custody and all aspects of Family Law. Contact our firm to see how we can put our knowledge and expertise to work for you. Call us at 845-294-7990 or to contact us via email, click here.