Matrimonial attorneys are often involved with drafting Marital Settlement Agreements which include arrangements for custody and parenting time. We are also called upon to review Judgments of Divorce and Orders entered by various judges throughout the state concerning such matters.
My experience is that the often-used term “joint custody” is misunderstood and therefore, misapplied. The result is an unsatisfactory definition which fails to define the rights and responsibilities of the parents, leaving such issues to be resolved by costly, time-consuming and divisive litigation.
So, what does “joint custody” really mean? For example, does it have to do with parental decision-making, parenting time or both? In parental decision-making, does the term create a distinction between major decisions and routine decisions concerning the children? Standing alone, “joint custody” does nothing to resolve such issues, much less create a mechanism for resolution if a dispute arises. Moreover, if called to do so, a court will often defer to the custodial parent regarding such matters, thereby leaving the other parent dissatisfied with the result.
Consider the difference between the obligation of divorced parents to “confer” regarding their children, as compared to their obligation to “agree”. Under the first scenario, a parent of primary custody is under no obligation to reach any agreement with the other parent and will proceed on the basis of what he or she believes is in the best interests of the children, thus leaving the other parent to seek legal relief by issuance of restraining order or the remedy. Conversely, requiring parents to “agree” changes the paradigm significantly. While two parents can still disagree, presumptions in favor of the custodial parent are substantially lessened and in some cases eliminated.
If “joint custody” is intended to encompass parenting time, is it any more helpful? The answer is no since without a schedule, including weekends, holidays, school recesses and other important occasions and events, it leaves such matters “up in the air” and ripe for controversy. A good rule is to be specific with regard to parenting schedules, to include exact times, locations, etc.
Thus, phrases like “liberal and reasonable parenting time”, are a recipe for trouble since the absence of detail will lead to misunderstandings, disagreements, disappointments and in some cases, a litigation to establish that which should have been fashioned in the first place.
Although some clients say, “don’t worry, we can work that out later”, what is the likelihood that they will be able to do so as each moves on with their lives, establishes new priorities and starts new families? There is a saying that “the devil is in the details” but with regard to joint custody, the “devil” is the absence of details. The losers in such cases are the children who are placed in the middle of parental disagreements while leaving their voices unheard. The key to avoiding such problems is to recognize the importance of carefully drafted language with regard to joint legal custody (parental decision-making), residential custody and parenting schedules which will serve to avoid future problems of interpretation and enforcement.