CHILD CUSTODY

Child custody is bifurcated. There is legal custody and physical custody. They are different concepts. Both must be decided upon.

Legal custody relates to decision making – things like – which school should the child attend, what medications should they be on, whether or not they should get a medical procedure done or get therapy, what extra-curricular activities should they partake in.

Most commonly, joint legal custody is awarded. It is rarer to see sole legal custody awarded, even where parties do not agree on many things, but a mechanism is typically put in place to help break impasses.

Examples of such mechanisms are:

• The parties will engage a mediator or parent coordinator when there is an impasse.
  • This is a very common method people initially employ to help break impasses. It is often idealistic, and not realistic. Decisions often need to be made at the last minute and mediators can’t be consulted with in time. Further, both mediators and parent coordinators do not make the decisions. They facilitate the decision-making process, with no assurance of a successful resolution. It is up to the parties to come to their own resolution. The mediation/parent coordinator process can also become costly as you are paying for their time. Not to mention, that it is not binding, so the party that doesn’t feel their desired position will prevail can just ignore the whole process. In sum, it is fine to try to use this as a method to break impasses, just be aware of the pitfalls and lack of guarantees. You don’t want your kids getting lost in the shuffle of what becomes a prolonged ineffective process with no teeth to cement definitive progress.
• Decision-making is allocated by “spheres of influence” where one parent gets to make the decisions in some areas, and the other parent in other areas.
  • For example, if one parent is a doctor, the other parent may say, I defer to him/her anyway for medical decisions so he/she can have decision making for all things medical, and since I take care of school and extra-curricular activities, I’ll take decision making in those areas.
    When one parent is religious or traditional and the other parent is apathetic about all things religious, the traditional parent may say, “I want decision making for the children’s religious upbringing and to take them to church or synagogue or ensure they have bar and bat-mitzvahs.”
• The doctor or school or child’s therapist can help weigh in and the parent who agrees with the professional makes the decision in that instance of impasses.
  • Parents cannot divest themselves of parental decision-making authority. They cannot write in their parenting or divorce agreements that, for example, the child’s doctor will make the medical decisions. What they can write is that if the parents disagree and one parent’s wishes are aligned with the doctor’s recommendations, that parent gets to make that specific decision. The courts often do this. When there is a medical issue, the judge will often ask, “What does the doctor say?” When there is an academic decision, they will ask, “What does the child’s teacher recommend?” So, utilizing this method for impasses mirrors what would likely happen if the parties took the issue to court.

The above are helpful for joint legal custody situations only. Where sole custody is awarded or agreed upon, they are moot. The parent with sole legal custody gets to make all the decisions relating to the children, without exceptions.

Sole custody can be awarded where the parties’ relationship is very high degree dysfunctional, their interactions are abusive and volatile in a constant, unremitting way. One party may be an addict. There may be a history of abuse. There are times when one party voluntarily relinquishes custody to the other party. I have seen this in many instances.

Notably, it is a near absolute right to have parental visitation. Even where a parent has not shown up for their children and is a sorrowful poor excuse for a parent, they still have a right to visit with their children. There are times when this is held in abeyance or tempered to protect the children, such as when the parent is actively using drugs and a danger to the children. But, even in these situations, the courts will try to institute supervised visitations and keep an eye on trying to foster a connection between the non-custodial parent and children.

Physical/Residential custody relates to which parent the children reside with. If the children reside with one of the parents for more than half the nights of the year, that parent has primary physical custody. If the children equally split the amount of nights they reside with each parent, the parents share a 50/50 joint and equal physical custody status.

Custody Standard:

It is often said that the golden standard to determine custody is the best interest of the children. This is a technically a misnomer. It is more apropos to call it a construct. A standard implies a methodical near scientific analysis. Custody cases are devoid of such procedure. Determining the children’s best interest in highly fact specific and subjective. Matrimonial and family law statutes give a lot of leeway for judicial discretion. Different judges may look at the same case and have inconsistent, disparate determinations regarding the children’s best interest.

There are also trend effects that parlay and take root over time. For example, the traditional primary caregiving parent used to be given great deference and had a leg up in being awarded custody. Not anymore. It is still a factor, but no longer the prevailing one. The courts are now keenly interested in which parent is more likely to foster a relationship with the other parent. The parent who goes out of their way to cultivate and foster an affectionate relationship between the children and other parent. The parent who will not engage in petty, manipulative parental alienation charades.

Overall, the court will weigh in a variety of factors towards a totality of circumstances analysis. These factors may include, but are not limited to:

• Which parent is likely to foster the children’s relationship with the other parent.
• Which parent I smore available for the children.
• Which parent is better suited to the emotional and intellectual development of the children.
• Which parent is the primary caregiver.
• Which parent has higher executive functioning and is better able to prioritize important tasks relating to the children.
• The home environment of each parent.
• Whether one parent has a new partner that is hostile or abusive to the children.
• Separation of siblings.
• History of obeying or disobeying court orders.
• Prior informal custody agreements, such as a de facto arrangement that has played over time or that the parties agreed to during mediation that was never formalized into a legally binding written agreement.
• The preference of the children, especially where the children are older, such as older teenagers.

The court will often appoint an Attorney for the Child (“AFC”) in custody cases. The AFC has to tell the court the children’s express wishes. They cannot supplant their own opinions and wishes for the children’s. In cases where the children are infants and not yet talking or where the children are special needs, the court may appoint a Guardian Ad Litem.

Forensic evaluations are another common feature in custody cases. The court instructs both parents to undergo evaluations by certified psychologists and psychiatrists who specialize in evaluating parental fitness. The forensic evaluators provide a written evaluation of their assessments, which is admissible at the time of trial.

Custody cannot be decided without a hearing for the court to weigh the facts and evidence. Sometimes, at the outset or during pending cases, one parent will bring a motion for parenting time or pendente lite custody. The court will often issue a pendente lite parenting schedule. This can be a temporary fix and subject to change.

The court is the Parens Patriae. They are considered the guardian of children’s best interest. They are bestowed with great authority to promote the children’s well-being in their custody and visitation decisions. Even where parties come to their own agreement, it can be subject to judicial scrutiny.