As Supreme Court Justice Potter Stewart said when discussing his threshhold for determining obscenity/pornography, “I know it when I see it, ” that is how I feel about emails regarding routine or what should be routine parenting issues that have been drafted not by one party, but by their lawyer. The pretextual blathering or legalese that says nothing screams off of the screen. It is enough to drive you mad – not because you are anxious to gather evidence in the form of an ill mannered email – but because it shows evidence of a party’s basic inability to do the slightest thing to make their own life and the lives of their children easier (or it could show a lawyer’s need to control every aspect of their client’s divorcing life, often to both parties’ detriment – perhaps the topic of another blog post.)
Now there have been times that I have asked/told a client to let me review an email before they send it to assure that the tone and/or content is right. However, this is not the norm.
That said, I have several cases now where it is obvious that the other party cannot answer the most simple email without it having been vetted and/or re-written by her lawyer. We are not talking about monumental decisions here. We are talking about selection of doctors, communication with teachers, changing parenting time due to weather, vacation arrangements, etc. Why is this being done in these cases? Because it is clear that the other party has no desire and/or ability to communicate, cooperate or co-parent with the other party. As such, her lawyer edits or prepares her emails to make them appear passable.
That is not co-parenting nor does it evidence any true ability to co-parent. Moroever, the divorce will end and that party wont have their lawyer their forever to co-parent. Further, it delays a response and the abililty to co-parent in real time. In many cases, the children suffer by the delay and/or it creates more unnecessary animus.
Almost every case resolves by way of settlement or trial with parties having joint legal custody – i.e. shared decision making. The touchstone for joint legal custody is supposed to be the parties ability to communicate and cooperate. One Appellate Division Decision, Nufrio v. Nufrio, put it succinctly:
…the allocation of the amount of time each parent spends with the child is not the sole basis or determining whether the parties should share “joint legal custody” of their child. Moreover, we conclude that the prime criteria for establishing a joint legal custodial relationship between divorced or separated parents centers on the ability of those parents to agree, communicate and cooperate in matters relating to health, safety and welfare of the child notwithstanding animosity or acrimony they may harbor towards each other. The ability of parents to put aside their personal differences and work together for the best interests of their child is the true measure of a healthy parent-child relationship. A judicial custody determination must foster, not hamper, such a healthy relationship. Therefore, a parent’s amenability or inability to cooperate with the other parent pare factors to be considered in awarding joint legal custody.
Sometimes, I think that lawyers and judges forget this, as they default to joint legal custody despite a clear inability on the part of one or both parents to communicate or cooperate. Now, don’t get me wrong. There are times when a parent refuses to cooperate with the other parent. That parent, even if they are the parent of primary residence, should be be permitted to create a self-fulfulling prophecy in order to get sole custody.
That said, if you cannot even respond to the most basic of emails or communications without your lawyer writing it for you, should you really have joint custody? Like it or not, parents need to put the nonsense behind them, if even for a few minutes, to co-parent their children. They were able to do it when they were married (in most cases) – a divorce should not prevent them from putting their children’s needs first, no matter how much they despise their former (or soon to be former) spouse.
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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.