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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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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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.)

Peace War Keys Stock Photo  Photo courtesy of freedigitalphotos.net.

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.

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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 esolotoff@foxrothschild.com.

 

With an increase in the number of working moms, stay-at-home dads, and more parents seeking a greater “work/life” balance, it is no surprise that the traditional parenting roles to which we have become accustomed continue to evolve.  This sentiment was echoed in a cover story featured in yesterday’s Father’s Day edition of the New Jersey Star Ledger, which focused on dads taking on a greater role in child rearing.

The story notes how, for many fathers in their 20s and 30s, being an involved parent is a part of their identity.  Certainly this contrasts with past norms, where a father’s identity centered largely, if not entirely, on his ability to financially support the family.  Now, as the article conveys, much of what dads do around the house is based, in large part, to how much mom is working and earning – i.e., the more moms work and earn, the more dads do at home.  I could not help but agree with the story’s conclusion that everyone is exhausted at day’s end, as each parent’s attention is just spread out differently between different tasks, whether it be more work at the office or more work at home.

From a family law perspective, the article had me thinking about how traditional custody arrangements and parenting time plans are also evolving with the changing parenting roles.  The New Jersey legislature generally favors a greater role in the child’s life by both parents, and some experts talk about how a more shared parenting arrangement may be in a child’s best interests as the child gets older.  This is, however, always dependent on a given set of circumstances, as every custody and parenting situation comes with its own unique set of facts upon which such decisions are made.

Seemingly less common now is the mom as primary custodian, or at least dad seeks to have more parenting time than just the traditional “every other weekend and mid-week dinner” set-up, commensurate with his increased parenting role in the home.  A court or custody expert will consider many factors in making decisions or recommendations with respect to custody and parenting time, perhaps the most important of which addresses how the parents divide the primary caretaking roles including, but not limited to, feeding, bathing and grooming the child, taking care of the child when she is sick, bathing the child and putting her to bed, doing homework with her, buying and cleaning the child’s clothing, attending school conferences, and fostering the child’s participation in enrichment and extracurricular activities.

As the article provides, more dads are taking on a greater amount of such caretaking responsibilities.  Depending on a given set of facts, it may make sense, by correlation, that the custody and parenting time arrangements also evolve.  Ultimately, a court is going to review and analyze the complete set of facts and circumstances at issue before determining what is in the child’s best interests as to custody and parenting time.

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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).

Continue Reading HOW CAN THERE BE JOINT LEGAL CUSTODY IF THE PARTIES CANNOT COOPERATE AND REFUSE TO COMMUNICATE?

There is never a shortage of new and interesting stories involving social media that impact upon our world of family law.  We have previously blogged about what NOT to do online, because there may be a spouse ready and willing to use such online postings, pictures and the like against you in your divorce proceeding. 

Apparently the Mom in the case of Melody M. did not read our blog posts. In a decision from a New York appellate court that garnered enough attention that I first read about it in the New York Daily News, Mom lost legal custody of the children for being mean to her oldest child on Facebook.

The basic facts were relatively straightforward.  The parties entered into a separation agreement in 2006 providing for joint custody of their three children, with "alternating physical placement."  In 2009, the parties stipulated to continuing joint legal custody, with Dad having primary physicla custody and Mom having scheduled parenting time for an evening each week and on weekends during the school year.  In 2010, Mom commenced the first proceeding to increase her parenting time.  Dad opposed the requested modification, and, among other things, sought his own form of modification by requesting that he be granted sole legal custody of the children.

Continue Reading MOM INSULTS SON ON FACEBOOK – LOSES CUSTODY

On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court’s Order, rendered without a plenary hearing and where there were disputed facts, granting the defendant joint legal custody. 

In this case, the parties were never married. While the plaintiff was pregnant with the parties’ child, she obtained a domestic violence final restraining order against the defendant.  Four years had passed and the parties were now in court dealing with emergent custody and parenting time issues.  The defendant’s attorney requested that joint legal custody be ordered and plaintiff’s attorney objected, contradicting defendant’s account of his support of the child and noting defendant’s history of drug use.  Plaintiff also noted the FRO, her fear of the defendant and that defendant presented no proof regarding his relationship with the child.  Notwithstanding, the Court issued an Order granting the parties joint legal custody and designating the plaintiff the parent of primary residence.

Plaintiff appealed and the Appellate Division reversed noting that a decision like this, where there was contradictory information presented, required a plenary (evidentiary) hearing.  The Appellate Division also noted that the parties’ relationship had been strained for year, as noted by the FRO, and that along with the FRO goes a presumption in favor of awarding custody to the non-abusive parent.  In addition, the Court noted that the plaintiff’s fear as well as the defendant’s drug use need to be considered at the hearing. 

This case reminds us of two things.  First, court’s cannot decide major issues without having plenary hearings if there are material facts in dispute.  Second, court’s must be mindful of findings of domestic violence when addressing the issue of custody, including legal custody, considering the statutory presumption of custody favoring the non-abusive parent.  Fundamental to the notion of joint legal custody is the parties’ ability to communicate and cooperate which is why a review of the history of domestic violence is so important.

Custody disputes are often the most emotional part of any divorce litigation.  Determining what the physical and legal custodial arrangement will be is a fact-specific analysis that puts at the forefront the best interests of the child.  While both parents start out with a presumpton of equal rights in a custody proceeding, fostering a child’s relationship with both parents is of utmost importance, as is encouraging both parents’ involvement in raising the child. 

N.J.S.A. 9:2-4(c) provides for several factors that a trial court must consider in determining whether to award joint custody, sole custody or an alternative that works in the child’s best interests.  These factors include, but are not limited to, the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody; and the needs of the child.  The Appellate Division recently addressed these factors in the context of a physical and legal custodial dispute in Elliott v. Prisock-Elliott, decided June 2, 2009. 

For a joint physical and legal custodial arrangement, the New Jersey Supreme Court has held that the children must recognize both parents as sources of "security and love," with a desire to continue both relationships; both parents must be fit and willing to accept custody; and the parents must demonstrate a "potential" for cooperation analyzed outside of the divorce context.  A parent involved in such a dispute should understand, though, that he or she need not have been as involved as the other parent in the child rearing process for joint custody to be appropriate. 

Continue Reading PHYSICAL AND LEGAL CUSTODY DETERMINATIONS – LOOK AT THE FACTS