Oftentimes during a divorce proceeding, the issues of custody and parenting time are resolved early on in the case. There is nothing stopping parties from drafting a final agreement detailing the legal and residential custody arrangement with a detailed parenting schedule, and having the court enter the agreement while financial issues such as alimony, child support, equitable distribution, and counsel fees remain in dispute.
In fact, settling such issues earlier in the matter not only generally benefits the parties and the children by ideally reducing conflict and allowing the kids to get used to a new parenting schedule, but also it limits the remaining issues on the table. In conjunction, it prevents the need to procure a custodial expert (or more than one) at a substantial cost and lengthy evaluation process involving the kids, and may also limit counsel fees. Should your matter proceed to trial, the number of days will also be fewer than if custody was still in dispute. To that end, while 98% of cases settle, I find that most custody and parenting time disputes settle separate and apart from financial issues, well before trial.
It is generally deemed improper to intertwine the issues of custody and finances during the settlement negotiation process. In other words, and by way of example, a custodial parent should not be dangling more parenting time in front of the other parent in exchange for a larger amount of alimony, or proposing a shared custody arrangement that will automatically shift to sole custody for one parent if that parent cannot afford to live near the other parent (without a full analysis of what is in the best interests of the children). This type of negotiating is generally deemed in bad faith because it can be contrary to the best interests of the children, and contrary to public policy. Custody agreements are supposed to be premised on what is in the best interests of the children, and not predicated on how much one party receives in assets. It is because these issues are supposed to stand so independently from one another why they can and should be resolved independently.
A trial judge, however, is not permitted to know the substance of negotiations and, thus, cannot know when one party is improperly negotiating in such fashion. In some instances, the court will ask the parties to submit their respective settlement positions in sealed envelopes, to be opened only once trial concludes, but for the purpose of determining each party’s reasonableness in connection with the issue of counsel/expert fees. It does not, however, stop a litigant from proposing something that entirely intertwines the issues of finances and custody.
Custody and parenting time is too delicate to negotiate this way. Many litigants, however, aware that it is improper to connect the issues, do exactly that without expressly saying so. For instance, the litigant will not agree to any issue in isolation, and will only agree to resolve everything together in a so-called “global” settlement entirely ends the case. In other words, the litigant refuses to resolve custody independently of finances, but in a way that does not expressly suggest that the issues are being intertwined. This sort of conduct usually becomes clear when I ask an adversary when I wil be receiving a response to my client’s custody proposal, to which I am asked, “when is your client going to make a financial proposal?”
To that end, an adversary once told me that he does not believe in negotiating custody issues, and that it should essentially be what it should be. While I do not agree with that sentiment, especially since each case is different, that adversary’s tune changed once his client gained leverage over the issue in a particular case (where his client, as a result, reneged on several of her own prior proposals in a clear sign that she had no intention on resolving custody and parenting time in isolation from finances). When I noted that the litigant was improperly combining financial and custodial issues in her latest proposal, the attorney responded that he was not going to stop his client from doing so in that particular case. As a result, the matter proceeded to trial on all issues over the course of several months at a staggering cost, and even involved the children having to be interviewed by the trial judge – all because one party insisted on improperly intertwining financial and custodial issues.
So, what is the take away here? Issues of custody and parenting time are too sensitive to tie a resolution of those issues to finances, and doing so is not only a disservice to the children (where they may even forced to meet with the judge), but also can heighten acrimony between the parties, increase counsel fees, and ensure a trial where one could have been avoided.