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In the highly scheduled, some say overscheduled, world of suburban children, figuring out where they are supposed to be and when is a constant battle. It is hard enough to do in an intact family, much less in divorced families where the parties are tasked to co-parent.  I know this week, just the addition of end of school year parties and changes of other birthday parties due to weather or family emergencies has turned our week on end.  Add another level of difficulty when the parties’ communication is strained at best, horrific/abusive, at worst and/or if the parties live at great distance from each other. Some people willingly agree to use Google Calendar, Our Family Wizard, or some other website or application that allows them to keep a master calendar for the children activities, events, school events, birthday parties, Bar/Bat Mitzvahs, vacations, sports schedules, etc.  Others have a constant battle and ultimately need to be ordered to have a master calendar of some type. For the high conflict warriors, the next battle (there is always a next battle), is whose job it is to input the dates into the calendar.

The common refrain we hear from the parent of primary residence is “I’m not his secretary” or “he gets copies of everything.” In a perfect world, every coach, every teacher and everyone else, provides copies to both parents.  In real life, this never happens.

In a recent case, the mother (who either does not work outside of the home or works very part time) alleged in court papers that the father “gets copies of everything” then proceeded to tell of all of the things that she had to forward to the father because he wasn’t copied.  She then had the temerity to exclaim with exasperation or righteous indignation that as parent of primary residence, it was hard enough to keep the calendar straight.

That’s exactly the point, if the PPR can’t keep the calendar straight, what hope does the other parent have? In that case, the judge ordered the mother (again) to timely maintain and update the calendar.  In most cases, that is probably the logical call because in most cases, the PPR is the one that will first get most, if not all of the information, and more importantly, may be the only parent that gets the birthday invitations, last minute scheduling changes, will and other things not amenable to notice to both parents, as well as the fact that that parent will be scheduling the non-emergent medical appointments, etc.

Can their be a way to divide the work, especially where the parties have equal or almost equal parenting time, both work full time outside of the home, etc. or otherwise?  Sure.  Maybe one parent can be responsible for imputing the initial soccer schedule received at the beginning of the season and the other parent responsible for the initial football schedule that same season. That said, in most cases, one parent has to be primarily responsible or you can have a stalemate as to who is entering the dates.  If that causes the children or other parent to miss an event, how is that in the children’s best interests?

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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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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.

Connect with Eric: Twitter_64 Linkedin

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.

 

All over yesterday’s news, including the Dallas Morning New, were reports that Deion Sanders won his custody trial.  As reported, Deion received sole custody of his two sons with his wife, Pilar.  The parties also were awarded shared custody of their daughter.  In English, Deion will make all educational, health and extracurricular decisions for his two sons, ages 11 and 13, and the parties will share that responsibility for their 9-year-old daughter

As these things tend to be, this was a nasty custody fight, with Pilar making allegations of abuse and Deion alleging that this was all about the money. 

For a New Jersey divorce attorney, what is also interesting about this case is that it was decided by a jury of 7 women and 5 men.  The concept of a jury deciding custody, or for that matter, any family law issue other than perhaps (but not always) a marital tort, is completely foreign in New Jersey and most jurisdictions.  In fact, other than perhaps Georgia, I am unaware of any other jurisdiction where there are jury trials for custody.  New York used to have jury trials to decide a contested divorce – i.e. whether the fault cause of action had been proven.  I suspect that this too is largely a thing of the past since no-fault divorce was recently enacted in New York, as previously noted on this blog.

In New Jersey, typically custody decisions take weeks if not months to get a decision from a judge.  In the Sanders case, the jury deliberated for less than two hours.  In New Jersey, the decision is determined less by the he said/she said, mud slinging, and more upon the testimony of one or more custody experts.  Moreover, as noted in my blog post last week entitled Custody – Back to Basics, the decision must consider the 14 factors set forth in the custody statute.

Continue Reading Deion Sanders Wins Custody Super Bowl

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?

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.

Last week we blogged about a recent unreported Appellate Division case where I was the attorney for the winning party at trial and on appeal.  To view the prior post, click here – to view the Appellate Division opinion, click here.  In last week’s post, I blogged about the importance of credibility.  There were other interesting parts of the decision.

In this case, the parties agreed that they would have joint legal custody but that the wife would have the children about 60% of the overnights.  The husband, however, in what we deemed a game of semantics, would not agree that the wife was the Parent of Primary Residence (PPR), though by definition, since she had the children more than 50% of the time, she was the PPR.  There is case law that says that the PPR has final say if parents deadlock on major decisions for the children.  Despite this being the law, this was an unresolved issue at trial.  The trial court essentially acknowledged the law.  The husband appealed claiming that the custody agreement was modified.

The Appellate Division held:

Defendant initially argues that the trial court erred in "setting aside material portions of the Consent Judgment to elevate plaintiff’s decision-making authority" respecting the parties’ two children. We disagree.
This was a bitterly contested divorce as evidenced by the extent of the record and the expense of the litigation. The court recognized that the parties "dispute[d] how to make decisions related to their children" and "recognized the parent of primary residence to be the parent in the better position to make those decisions." The court held that as "primary caretaker," plaintiff "shall decide in the best interest of the children their medical needs and treatment, schooling, expenses, and even religious instruction" because it was not in the children’s interest to "be in the middle of parental conflict" when decisions concerning their welfare needed to be made. The court left intact the parties’ agreement to "confer on all important matters concerning the children’s health, education and general well being" and to use a mediator to resolve disputes that might arise concerning the children. The court concluded that "[t]he parties shall be bound by the terms of their consent judgment fixing custody and parenting time subject to the plaintiff’s authority as parent of primary residence." With respect to extraordinary medical treatment, the parties were to consult each other in advance, except in cases of emergency, and "[n]either party shall unreasonably withhold consent."

We agree that the trial court’s modification of the parties’ consent judgment is in the children’s best interest, considering the hostility between the parties. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Should the parties come to a resolution of their hostilities and be able to deal reasonably with each other regarding the children, they may seek to amend the judgment in respect of the custody provisions pursuant to N.J.S.A. 2A:34-23. In the meantime, irrespective of the parties’ agreement, the court properly exercised its "supervisory jurisdiction as parens patriae," in the children’s best interests. Sheehan v. Sheehan, 38 N.J. Super. 120, 125 (App. Div. 1955).

 

To the extent that parenting agreements are unclear, or there is a dispute as to what joint legal custody means, this case provides some guidance.

In this day and age, marriages involving people of different religious in no longer uncommon.  In some of these families, the parties choose one religion to raise the children in.  Sometimes even, one parent converts to the other’s religion.  In other cases, the parties and the children observe both religions.

The question is what happens when the parties divorce?  What happens if one parent converts to another religion post-divorce and wants the children to similarly convert.  Though it seems as though this would be a complicated issue, in reality, the answer to the question is relatively easy. 

Specifically, under NJ law, the primary caretaker has the right to determine the religious upbringing of the children in their custody and courts will not interfere in that parent’s decision regarding religious training for the children.  The policy behind this judicial reluctance to interfere with the religious training of children is that it is in the best interests of the children that the custodial parent be allowed to determine their religious upbringing. 

This principle was confirmed by the Appellate Division in a case where the parties were Protestant and raising the children in that religion before the divorce.  After the divorce, the mother converted herself and the children to Orthodox Judaism.  The mother, however, was not allowed to use the religion to interfere with the father’s time with the children.  Moreover, the father could expose the children to his religion when they were with him but was not allowed to educate them in his religion.

Simply put, the custodial parent can determine the children’s religion – the non-custodial parent can expose, but not formally educate the children in that parent’s religion. 

The Court’s have been clear that this has nothing to do with the preference of one religion over another. Rather, it is consistent with the law in general that gives custodial parents final say in decisions regarding children, even where there is joint legal custody, because that parent is presumed to know more about and be more in tune with what is in the children’s best interests.  This principle has been applied to disputes ranging from religion to those involving elective medical procedures such as a nose job. 

While this issue does not come before the Court all that often, as noted above, the law is well settled in this area and pretty straight forward.

A lot of times clients come in saying that they want full or sole custody of the children.  This inevitably leads to a discussion regarding the distinctions between legal and residential custody.

Legal custody is essentially involves decisions regarding children’s health, education, religion and general welfare.  With sole legal custody, one parent can make all of the decisions regarding these matters, though they have to consult the other parent in most cases.  With joint legal custody, the parents must consult and attempt to agree. 

Residential custody is where the child lives.  Some catch phrases often used are Parent of Primary Residence (or PPR) and Parent of Alternate Residence (or PAR).  Surprisingly enough, the official definitions for these terms come from the Child Support Guidelines.  Simply put, the PPR is the parent with whom the children reside more than 50% of the time. 

Now, with regard to the question as to whether it is worth fighting about the issue of sole vs. joint legal custody.  In practice, I have found that even in all but the worst of situations, must custody experts recommend and most judges order joint legal custody.  This is even though there is case law that says that joint legal custody may not be appropriate if the parties evidence no ability to communicate.  Of course, if it is the custodial parent that wont cooperate, it seems unfair to reward that parent with sole custody. 

In addition, there is a presumption in the case law that the custodial parent gets the final say in the event of a deadlock between the parents, even when there is joint legal custody.  This has come up time and again in reported decisions, including in cases regarding religious upbringing and of all things, a nose job. 

So, if the experts and courts are usually going to recommend joint legal custody, a litigant must investigate whether it is really worth it to fight for sole custody  Similarly, if the PPR has the legal presumption anyway, one must really consider whether it is worth the fight. 

This is not to say that it is not worth fighting about custody.  The real fight in most cases, if there is a bona fide dispute,  is and should be who is the PPR and how much parenting time the other parent enjoys.