Custody disputes can be both expensive and emotionally draining. In 1992, the New Jersey Appellate Division Court even hinted at the judiciary feeling somewhat uncomfortable with deciding custody disputes.
Specifically, in Tahan v. Duquette, 259 N.J. Super 328, 336 (App. Div. 1992), the Court wrote the following regularly cited opinion (at least in New Jersey):
We urge the parties to understand that courts in any jurisdiction are poor places to resolve such fundamental relational problems as child custody. Rules of law and procedural strictures are no substitute for personal choices in so intensely personal an issue. Parents who have divorced are frequently unable to communicate constructively on issues of importance; so they look to the legal system to resolve their problems. But no stranger in a judicial robe, however able and well-motivated he or she may be, is equipped to make a decision as valid as the parents working together might make.
Be that as it may, there are few if any elements of a divorce that are more important than protecting the best interests of the party’s children. Likewise, there are few issues that will become as contentious as a custody dispute.
You may want to print that language out. At the end of most cases awaits the “stranger in the black robe” ready to, in a sense, decide the fate of your children.
Although I enjoy trials as much as the next lawyer (aside from the preparation for trials, which can admittedly be tedious) this concept of control is important because many studies demonstrate people are ultimately happier with an outcome they negotiated and had control over rather than an outcome that was out of their hands (such as a verdict or court ruling). Apparently this is true even if the negotiated agreement’s terms were not as favorable.
Best Interests of the Child
The analysis of most child custody disputes starts and ends with a simple but hard to define standard: “The Best Interests of the Child.” The expression itself may change based upon jurisdiction, but that is the overarching idea behind almost all custody dispute law.
The best interests of the parties’ children standard may involve some of the following arguments:
- *Where will the child receive the best education?
- *Where will the child be safest?
- *Which party can provide the “better” living conditions?
- *Which party is more nurturing?
- *Where will the child have the best chance to excel?
- *Which parent is less likely to attempt to alienate the other party or to foster communication;
- And so on.
Types of Custody
In general, most jurisdictions consider two basic types of child custody:
1) Legal Custody; and
2) Physical Custody.
Legal custody generally includes the right to make important decisions regarding the child, such as important decisions involving health, religion, and education. Physical custody addresses the day-to-day care of the child(ren).
Often even a non-custodial party will be granted a significant amount of parenting time. The amount of overnight parenting time also plays a role in determining child support awards in most jurisdictions. It’s important to discuss the different types of custody and how they relate to child support with your client during the initial consultation and throughout the case.
Gender and Custody
The Constitution generally requires that the law be gender neutral when determining custody (except perhaps in some jurisdictions when a child is very young). In my jurisdiction 50%-50% physical and legal custody of the children has become increasingly normal over the last decade or so.
Modification of Custody
In most jurisdictions child custody is always subject to modification if it can be shown that there is a change in circumstances and that such a custody change is in the best interests of the child(ren).
Custody decisions are often consented to by the parties as part of the divorce or as a separate Custody Agreement in conjunction with their divorce proceedings. Until a child is an adult, however, custody issues may persist and/or be revisited upon either party’s request.
Litigation of Child Custody Issues
If the parties cannot resolve their custody issues, then the matter will likely have to be litigated. As part of the child support litigation, there will likely be outside experts called in to assist the Court in determining which living arrangements are in the best interest of the parties’ children. Issues of parental fitness will often play a larger role than the preference of the child, particularly if the child is younger.
As the block quote above about the “stranger in the black robe” demonstrates, the Court will likely push parties’ toward mediation. Child Custody cases are highly fact sensitive. As such, the effective and aggressive use of all appropriate discovery techniques will be considered in contested or potentially contested custody disputes. You must also be ready as a practitioner to address the complex emotion of such a case. Some divorce attorneys I know even refuse to take on cases involving custody litigation.
Parenting Time Law
Parenting time–sometimes referred to as visitation–addresses the specifics of a custody order or agreement.
As a matrimonial lawyer you must do your best to broker a deal or fight for the parenting time sought by your client. Likewise, judges will make a call if they must. In my opinion, the parties themselves are often best equipped to work out a reasonable parenting time arrangement on a day-to-day and hour-to-hour basis. After all, it will be the parties who, along with their children, will be implementing the parenting time arrangement into the fabric of their daily lives.
Accordingly, if possible the parties should recognize and work together to protect the best interests of their children. Ideally, they will push aside their own differences and work towards a fair resolution of the parenting time issue.
Basic Concepts of Custody
Custody will determine which party is the parent of primary residence (physical custody) and which party is the parent of alternate residence. Absent good cause, most jurisdiction’s laws generally favor liberal parenting time with the parent of alternate residence, so that the children will maintain a post-divorce relationship with both parents provided it is safe to do so.
Exceptions to this general rule do exist, such as when parenting time would not be in the best interests of the children. One such instance is when the parent of primary residence has a history of child abuse or even domestic violence. Even then, however, the Courts generally favor restrictions on parenting time (such as requiring that parenting time be supervised) to denying either party parenting time altogether.
Many cases hold that children have a right to a loving relationship with both parents. The parent of primary residence generally has a responsibility to foster and develop the relationship between the parent of primary residence and their children. The parent of primary residence may therefore be sanctioned if he or she attempts to alienate the children from their other parent. Such sanctions can include up to the loss of primary custody in many jurisdictions.
Parenting time rights are generally only guaranteed to the actual parents or guardians. Outside parties generally have no legal right to parenting time, even when those outside parties are non-guardian grandparents. Parenting time is often not contingent upon the payment of child support.
Parenting Time Agreements
Parenting time arrangements may be determined by the Agreement of the parties or by the Court. Either way, the disposition of this issue should be crafted considering the best interests of the parties’ child(ren).
Most Courts and family law attorneys alike will look to a traditional parenting time arrangement to provide a basic framework for parenting time. Negotiations will then focus on modifying the Agreement to reflect the wishes of the parties. Fights over specific holidays can oftentimes hold-up an otherwise done deal.
Holidays are generally alternated between both parents based upon even and odd years. For instance, if the Father had the children for Thanksgiving in odd years, then the Mother would have the children for Thanksgiving in even years. The parties can enter into an Agreement for parenting time/custody as part of the Marital Settlement Agreement or as an independent Consent Order prior to the ultimate disposition of the case. This Agreement would then be embodied and/or incorporated into the Marital Settlement Agreement. The more specific, the better as a divorce agreement will serve as the “rulebook” to the parties’ post-divorce relationship. A goal of any practitioner should be to craft easily understood divorce agreements that do not lend themselves to creating future issues, disputes, and/or litigation.
Who Decides the Child’s Religious Upbringing?
In a divorce–particularly one with young children–the following questions may arise:
- Should the children be raised to practice a particular faith or religion?
- If yes, how active should the children be in that religion?
- Should the children attend religious education? If so, what if that interferes with the parenting schedule? For example, in a divorce case where the wife is of Jewish faith and the husband is of Catholic Faith, if the parents agree to raise the child Catholic should the mother be required to take the children to CCD classes during her parenting time?
- Should the parents agree to split the costs for religious education? For instance, in the above example should the mother be required to help pay for her children’s holy communion luncheon or confirmation dinner?
- How often should the children attend religious ceremonies? For instance, should a parent be required to attend church/synagogue/etc., with the children even if they are not of the same faith?
- If the parents agree on raising a child in a specific faith, to what extent do they agree or not regarding parochial/private school in that religion versus public school?
Such issues can present a unique challenge when a stalemate arises between the parties. For instance, in the above example the Wife in the hypothetical is of Jewish faith and the Husband of Catholic faith. Perhaps the parties have a newborn at the time they divorce–or they have not yet agreed upon the proper faith/religion in which to raise the child. Now that they are divorcing, this may become an important issue for them. Perhaps the Husband is convinced it is in the child’s best interests to be raised in the Catholic faith–like the Husband. And perhaps the Wife is equally convinced it is in the child’s best interest that the child be raised in the Jewish faith–like the Wife.
Assuming the parties cannot work out this issue, it may come before a court at the time of trial? But how would the Court react?
The practical answer is that I have found there are few issues Court’s abhor deciding more than religion. First Amendment (and other constitutional) issues are at play, judges are loath to make any decision (as it may appear they are preferring one religion to another); and moreover courts recognize that for any type of plan to work it will likely require buy-in by both parents. This is an issue that courts may “punt” entirely.
For instance–the court may rule that the child be exposed to both faiths. Or: The Court may take no position on this issue at all. If the parties have a parenting coordinator then perhaps they can assist in such an issue (and mediation may help), but if not, what can be done?
Some guidelines that parties may wish to consider in such an instance may include:
- *How religious (or not) each party is?
- *The religious roots for both families;
- *The importance of the issue to each party;
- *Which parent will be more committed to the responsibilities associated with raising children in their respective faiths;
- *Prior to the divorce have certain steps been taken to raise the child (or children) in any specific faith?
- *Have other children of the relationship already been baptized/etc., or otherwise been raised in a specific faith?
- *To what extent is each party acting in good faith raising such issues?
- *To what extent will the parenting plan allow for the children to be raised in their specific faith. For example, if there is a language component to a specific religion/faith, how will the parenting schedule allow the children to learn same to meet their religious requirements?
It will ultimately be very much up to the parties in such circumstances to put aside any animosity they may have toward their ex-spouse (or soon to be ex-spouse) and to cooperate in the best interests of the child(ren) to make such determinations.
Drop-Offs and Pick-Ups
A divorce agreement should also be specific, when possible, about each parties’ obligation to drop off and pick up the child(ren) from parenting time. Again, being specific helps avoid disputes and provides clarity to the case when your representation has concluded.
Conclusion
Custody and parenting time issues can be one of the most contentious parts of the divorce. Luckily, with the assistance of effective legal counsel, in many instances the parties can work together to create an amicable resolution of the parenting time issue. We’ll turn next to a general discussion of alimony.
Partner with Carl Taylor, Esq.
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