When Joint-Custody Doesn’t Work

Warring Parents

The presumption for resolving custody disputes in New Jersey is typically to order joint custody between the mother and father, leaving the parents to work out the differences for themselves.  While this plan may be the ultimate goal of most divorcing couples or broken relationships, in many cases it tends to be more aspirational than practical.  Think about it: having joint custody of your children requires that you live within a reasonable distance of your ex-partner, you can amicably come to a consensus on decisions for your children, and you can tolerate one another to communicate efficiently and effectively.  But how many relationships really end on such good terms?  I beg to say fewer than we would hope in divorce cases.

I came across an article that gives a perfect example of when joint custody doesn’t work.  The New Hampshire Supreme Court had to rule on whether the daughter of a divorced couple with joint physical and legal custody should be home-schooled (as desired by the mother) or enrolled in public school (as desired by the father).  Ultimately, the court ruled that it was in the best interests of the child to be in public school.  Decisions like this get trickier though when the parents live in separate states, move to a town outside the children’s school district, or switch religions and now have a different understanding of how education should be handled.

In the little experience I have had with custody cases in New York City, it is more common for judges to grant sole physical custody to one parent, and split the legal decision-making (regarding education, medical, religion, etc.) between the parents.  One judge in Brooklyn, however, often orders that legal decision-making should be discussed and negotiated between the parents, with one parent having final decision-making power in the event of no consensus.  Personally, this boggles my mind.  How can you expect warring parents to come to a consensus for their children, if they have such differing views?  And does a judge really think he is being “fair” by ordering such legal-decision-making power, when one parent ultimately has the authority to override the other?

Unfortunately, this one court experience was not just the beginning of the NH’s couple’s brush with the legal system: there was the father’s contempt motion in 2005, a court order in April 2006, the father’s motion to modify parenting time in January 2007, an agreed-upon parenting plan in September 2008, and the mother’s motion to modify the 2008 Parenting Plan in February 2009.  As you can see, having a “final” order in any custody case, whether it be for sole or joint custody, does not end the numerous problems that may arise or the ongoing need for modification as the child grows.

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