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
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…
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.
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).
Last week, the news reported the decision in the custody case involving Miami Heat guard, Dwyane Wade’s, children, after one of the longest custody trials ever in Cook County. Apparently, a large part of Mr. Wade’s decision to seek sole custody of his children was allegations regarding his wife’s alienating behavior. In the decision issued…
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…
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.