Child Custody

Emotions may have brought the two of you into divorce or family court, but the emotions must be checked at the door. The case must proceed based on a combination of facts and law. To litigate emotions, is to drive the cost of litigation up much higher than it should or could be, and cause deeper scars in both of you, which will only harm the child, no matter how well you think you may be protecting your child.

Every child needs both a mother and a father in his or her life, to grow up healthy and secure. Not just a biological parent with a name, but one who is actively involved in the child’s life. Love, nurturing, guidance, companionship is so very important to the child’s sense of self and well being.

Every day before the split up, you trusted the child’s other parent with the child in every way, even if you thought you were a better parent. Now, for leverage and advantage, you claim the other parent is so horrible, but nothing has changed since before the split up. This only hurts the child in the end, and jacks up legal costs. It is to selfishly argue your own best interests and litigate emotion. To argue the child’s best interests from your point of view only and not that of the child’s, is to hide behind the child, to harm the child, to hurt the very child you claim to love so dearly.

Common questions:

1. What is joint legal custody and how does it work?

Good question. It is usually joint decision making of major decisions concerning health, education, religion and general welfare. It is usually not joint decision making of day to day decisions, nor emergency decisions. I say usually, because New York State does not have joint custody as a law. In New York State, unless two parents agree to joint legal custody, very few judges will order it. Even if two parents agree to it, many judges will not approve it. Some judges will only approve it if one parent is designated as the final decision maker.

Once one parent is designated final decision maker, it is no longer joint legal custody, but sole custody to that parent.

Too often judges claim it does not work, they claim they see too many joint legal custody cases come back to court with problems. But that is all they see – the problem cases. Judges do not see all the joint legal custody cases where it does work. The ones that do not work, is a very small percent. Thus, Judges have a very skewed perspective. My favorite is when a Judge says: “But my wife is a psychologist, or a teacher, and she says …” This is always a very limited perspective, not authoritative, and very illustrative of a bias based on factors outside of the case. Such biases and personal feelings should be checked at the door.

So, to avoid problems, define joint legal custody in your agreement. Define what it applies to, i.e., major decisions of health, education, religion, and general welfare. Define what it will not apply to, i.e., day to day decisions and emergency decisions shall be made on a an emergency basis with notice to the other parent as soon as is reasonable possible. (If your child broke a bone, wants you there for comfort, and to be center of your attention, it is not the time to pick up a phone.) I also like to limit major decision to be made when possible, i.e., the child’s religion is _____, the child shall continue to attend public school.

2. So, then, if I have sole custody, I do not need to discuss any of these matters with the other parent?

Wrong, but a common misconception. You must inform the other parent of the major decision to be made, and accept his or her input and opinion, then you can make the decision on your own.

3. If I agree to joint legal custody, won’t the other parent be a pain all the time trying to assert his or her opinions or will?

In some cases, yes, in most cases, no. Usually, once time has gone by, things settle down, and no one tries to “assert” his or her self. Usually, it is those without a share of decision making who tries to assert his or her self. Otherwise, approached right, the one who never did much during the marriage or relationship as to decision making, backs off and goes with the flow. Just let the other parent feel empowered, and the parent usually does not use the power, after time has passed.

4. Can joint custody benefit me or harm me?

Like everything else, it can go both ways, depending on how you define harm and benefit. Most often, it will benefit you. Nonresidential custodial parents with joint legal custody are usually more up to date with child support and more willing to contribute more financially on his or her own. It frees up your schedule if you cannot take care of something for the child(ren), as the other parent will be more willing to be involved and take care of it. In the end, it is the child(ren) who will benefit most from joint legal custody.

5. I have sole custody, and my x refuses to tell me complete details about his or her visitation time with our child(ren). When I tell him or her what to and not to do during his or her time with our child(ren), he or she never does it. I call him or her several times a day to check on our child while with him or her, and other than answering my calls once per day, they are ignored. Can I got to Court and have his or her visitation stopped?

Absolutely not. You are not allowed to micro manage the other parent’s visitation time with the child(ren). That parent does not have to report to you at all. Your behavior can be termed visitation interference. You are entitled to only phone call per day on a day the child(ren) are not at all with you, to speak to the child(ren), not the other parent. Absent the child (ren) being sick, or something happening like a severe injury, the other parent need not tell you anything. Consider yourself lucky the other parent has not yet taken you back to court.

6. Is there a standard visitation schedule?

No, not really, but most common is alternate weekends, Friday evening through Sunday evening, and one or two mid week dinner visits, maybe a midweek overnight.

When the parents do not at all get along or trust each other, I like from Friday at the end of school or camp or childcare, to the start of school or camp or childcare Monday morning. I also like the mid week to be from the end of school or camp or childcare until the next morning at the start of school or camp or childcare school or camp or childcare the next day. Communication can then be by email. This avoids exposure of the child(ren) to the acrimony of the parents, by ensuring the parents avoid each other.

7. How easy is it for a parent to relocate with the children?

Every case is different, but in general, not very easy. The parent wishing to relocate the children will have to show that the move is in the children’s best interest, and not just in that parent’s best interest. If the issue is money problems, the parent will have to show that all possibilities of improving his or her finances here has been exhausted, unless it is due to nonpayment of support from the other parent. The comparison of schools and crime rates will also come into play, as well as the location of extended family and how much they are involved with the children. A big factor will be how often does the other parent see the children and participate in the children’s school life and other activities. A new spouse out of state is not necessarily a good enough reason. A better job out of state is not necessarily a good reason. Acrimony between parents might be a good enough reason, if the moving party is not primarily at fault, and the acrimony rises to such a level as to endanger the mental well being of the children. The distance is very important. The court is more apt to approve a relocation to a neighboring county than to another state or across the same state. There is even a case where a father only had supervised visitation pursuant to an Order of Protection, and the Court did not allow the relocation.

If you want to avoid your children being relocated, make sure to be up to date in your support payments (not supposed to be a factor but often is), use all of your scheduled time with your children, go to all their school events and extracurricular activities, and try to avoid any and all confrontations with the custodial parent and never talk bad about the other parent to the children.