Sole custody is kind of like Big Foot or the Loch Ness Monster – everyone has heard of it but few have actually seen it.  Clients tell me all of the time that they want sole custody – either because that is what they believe they should have, or because they have justified it based upon the other party’s conduct.  Some seem shocked when I tell them that it is very unlikely to occur – even in the worst of cases.  I regale them of horror stories where, at the end of the case, either the expert has recommended joint legal custody or the court has ordered it.  This happens even in cases where conduct has arguably been abusive.  This happens in cases even where there is no ability for the parties to communicate or cooperate.

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Copyright: strels / 123RF Stock Photo

I was reminded of my belief in the hypothesis that sole custody doesn’t really exist when I read the case of Costa v. Costa, a reported decision released on January 12. 2015.  The short version of the facts is that after the divorce, the husband moved to Brazil.  The wife asserted, among other things, that since relocating to Brazil, he ex has failed to communicate with her in any meaningful way regarding decisions as to the children’s health, safety, and education.; telephonic communications are difficult and sporadic; and that her ex mostly ignores her attempts to communicate electronically. As a result, she alleges that she is largely unable to reach defendant to make such decisions in a reasonable period of time. Unfortunately, she did not raise those issues below and rather, was dealing mostly with the difficulty in obtaining passports for the children which was the central issue before the Court.   The father seemed to argue that he had regular discussions with the children and tried having discussions with the ex-wife.

In any event, her motion to modify joint legal custody to sole custody was denied.  The argument, not flushed out in terms of lack of ability to communicate, apparently was that the move to another country was a change of circumstances, but the courts disagreed.  In fact, Court seemed to suggest that relocation is only a change of circumstances when it comes to physical custody, not legal custody, and that joint legal custody does not require the parties to be in close physical proximity. In fact, the court noted, “Even if physical custody is not possible due to geographic separation, modern telephonic and electronic communications can enable effective joint legal custody and “preserve the decision-making role of both parents.”” The opinion, however, fails to address the refusal to communicate whether or not physical proximity was close.

Now, I’m not sure why this case was a reported (precedential) decision, because there is not much too it.  While the Appellate Division noted the allegations of the lack of/difficulties in communication, it offered little guidance regarding them and did not seem to place much importance in them.  Perhaps this was simply procedural.

But have court’s forgotten the underlying touchstones for joint legal custody – specifically, the ability to communicate and cooperate.  There is case law that holds that a parent’s refusal to co-parent with the other parent goes against a recommendation of joint legal custody. In fact, our Supreme Court has held that:

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. …

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.

So what if the court delved further in to the father’s so called efforts to speak to the mother?  What if the Court learned that these efforts were minimal, at best?  Should the father’s desire to retain joint decision making trump his inability and/or refusal to communicate with the other parent?  If court’s and experts really aren’t going to consider the refusal to communicate and cooperate, despite the mandate to do so from the custody statute and case law, should the fiction of sole custody be eliminated?

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Eric SolotoffEric 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 esolotoff@foxrothschild.com.

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