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?


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

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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 support, equitable distribution, and counsel fees remain in dispute.

In fact, settling such issues earlier in the matter not only generally benefits the parties and the children by ideally reducing conflict and allowing the kids to get used to a new parenting schedule, but also it limits the remaining issues on the table.  In conjunction, it prevents the need to procure a custodial expert (or more than one) at a substantial cost and lengthy evaluation process involving the kids, and may also limit counsel fees.  Should your matter proceed to trial, the number of days will also be fewer than if custody was still in dispute.  To that end, while 98% of cases settle, I find that most custody and parenting time disputes settle separate and apart from financial issues, well before trial.

divorce and kids

It is generally deemed improper to intertwine the issues of custody and finances during the settlement negotiation process.  In other words, and by way of example, a custodial parent should not be dangling more parenting time in front of the other parent in exchange for a larger amount of alimony, or proposing a shared custody arrangement that will automatically shift to sole custody for one parent if that parent cannot afford to live near the other parent (without a full analysis of what is in the best interests of the children).  This type of negotiating is generally deemed in bad faith because it can be contrary to the best interests of the children, and contrary to public policy.  Custody agreements are supposed to be premised on what is in the best interests of the children, and not predicated on how much one party receives in assets.  It is because these issues are supposed to stand so independently from one another why they can and should be resolved independently.

A trial judge, however, is not permitted to know the substance of negotiations and, thus, cannot know when one party is improperly negotiating in such fashion.  In some instances, the court will ask the parties to submit their respective settlement positions in sealed envelopes, to be opened only once trial concludes, but for the purpose of determining each party’s reasonableness in connection with the issue of counsel/expert fees.  It does not, however, stop a litigant from proposing something that entirely intertwines the issues of finances and custody.

Custody and parenting time is too delicate to negotiate this way.  Many litigants, however, aware that it is improper to connect the issues, do exactly that without expressly saying so.  For instance, the litigant will not agree to any issue in isolation, and will only agree to resolve everything together in a so-called “global” settlement entirely ends the case.  In other words, the litigant refuses to resolve custody independently of finances, but in a way that does not expressly suggest that the issues are being intertwined.  This sort of conduct usually becomes clear when I ask an adversary when I wil be receiving a response to my client’s custody proposal, to which I am asked, “when is your client going to make a financial proposal?”

To that end, an adversary once told me that he does not believe in negotiating custody issues, and that it should essentially be what it should be.  While I do not agree with that sentiment, especially since each case is different, that adversary’s tune changed once his client gained leverage over the issue in a particular case (where his client, as a result, reneged on several of her own prior proposals in a clear sign that she had no intention on resolving custody and parenting time in isolation from finances).  When I noted that the litigant was improperly combining financial and custodial issues in her latest proposal, the attorney responded that he was not going to stop his client from doing so in that particular case.  As a result, the matter proceeded to trial on all issues over the course of several months at a staggering cost, and even involved the children having to be interviewed by the trial judge – all because one party insisted on improperly intertwining financial and custodial issues.

So, what is the take away here?  Issues of custody and parenting time are too sensitive to tie a resolution of those issues to finances, and doing so is not only a disservice to the children (where they may even forced to meet with the judge), but also can heighten acrimony between the parties, increase counsel fees, and ensure a trial where one could have been avoided.


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

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).


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 by Judge Renee G. Goldfarb, the Judge held:

This court finds that (Siohvaughn Wade) has embarked on an unstoppable and relentless pattern of conduct for over two years to alienate the children from their father, and lacks either the ability or the willingness to facilitate, let alone encourage, a close and continuing relationship between them.

We have previously blogged many times on issues regarding parental alienation.  Though I do not believe that it has yet occur ed, we discussed the movement to have "Parental Alienation Syndrome" included as a diagnoses in the new edition of the DSM. We have also discussed programs that deal with parental alienation as well as different cases addressing whether there can be tort liability for parental alienation.

What the Wade case shows is that when a parent embarks upon a course of conduct to alienate children from the other parent, and shows little desire, if not an utter inability to foster and encourage a relationship between the children and the other parent, that parent risks losing custody.  Parents divorce each other.  They don’t divorce the children.  We cannot ignore the danger of harm to the children when a parent seeks to prevent or destroy the children’s relationship with the other parent.  The research is clear that children need both parents in their life.  However, when a parent seeks to destroy the children’s relationship with the other parent, they risk having their own time with the children limited in order to mitigate and/or prevent the opportunity for further damage being caused.

The results of parental alienation can be tragic.  It is encouraging to see a court take it seriously and spend sufficient time exploring the issue.

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.