Early in case where children are involved, we discuss the different types of custody. There is residential custody - i.e. who the children live with and the resulting parenting time for the other parent. Then there is legal custody which is decision making regarding issues of the health, education, religion and general welfare of the kids. in 99% of the cases, the parties will share joint legal custody - it is usually a no brainer. in fact, In the New Jersey Supreme Court’s seminal decision of Beck v. Beck, 86 N.J. 480, 497-501 (1981), the Court stated as follows with regard to whether joint custody should be awarded:
At a minimum both parents must be ‘fit’ that is, physically and psychologically capable of fulfilling the role of parent.
That said, the minimum requirement of joint legal custody is the ability to communicate and cooperate on some basic level as it relates to the best interests of the children. The Court in Beck further noted:
The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.
Again, in Beck, the Supreme Court of New Jersey has written:
The most troublesome aspect of a joint custody decree is the additional requirement that the parents exhibit the potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to exclude their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Beck v. Beck, 480, 498 (1981).
But every once in a while, we have those cases where there is just no ability to cooperate, and where joint legal custody will be used as a tool of harassment and control. The case of Nufrio v. Nufrio, 341 N.J. Super. 548 (App. Div. 2001) was one of those cases. In that case, the court found that joint legal custody would not be in best interests of child because the parents were un-able to agree, communicate, and cooperate in matters relating to health, safety, and welfare of child. But there was more to it than that. The court found:
...Although the judge has provided defendant with significant parenting time with his son, the findings of the judge make it clear that any form of “joint” custody or shared decision-making will be detrimental to the parties' child. The concern that the defendant would use the label of “joint legal custody” as a disguised attempt to harass plaintiff through re-peated applications to the court has support in the record. Such a situation would clearly be detrimental to the best interests of the child.
Again, we have all had those cases where there will never be communication and never be cooperation. What do we do? What if it is primary custodial parent that refuses to communicate and cooperate? Is it fair to let that parent's aberrant conduct defeat joint legal custody? Probably not. Maybe a parent coordinator can help. Maybe the answer is to vest decision making in the parent of alternate residence. However, when it is the parent of alternate residence that refuses to communicate and/or cooperate, some times, sole legal custody may be the only way to go.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.