Custody/Access – The Children
We can offer you no better advice than to consider your children’s needs first and foremost. By communicating and cooperating with one another, parents can minimize the effects of a divorce or separation on their children. At the least, every good faith effort should be made to do this for the children’s sake, whenever feasible. Under certain circumstances, however, cooperation may not be possible where, for example, domestic violence is involved.
Child custody essentially involves two aspects: “legal” custody, or decision-making authority concerning major issues affecting your child or children, including, but not limited to, education, health and religious issues; and “physical” or “residential” custody, or physical parental access to the children.
Joint legal custody means, in essence, that major decisions affecting your children, including medical treatment, educational decisions, mental health and other important concerns will be discussed and decided jointly by the parties. Unless specifically stated in your agreement, or unless one parent is awarded sole custody of the child or children, neither party will have the final say to make a major decision, and the two parties must decide the matter together. This area of the law is more complex than we can explain here, and requires an analysis based upon your individual situation.
There are significant obligations that each of you will have if you agree to joint legal custody. It is assumed, for instance, that you are able to communicate and effectively cooperate with one another when it comes to your children. In order to have an effective joint custodial arrangement, both parents must be ready, willing, and able to deal cooperatively with one another on a regular basis and maintain open lines of communication. The parents should strive for this even where one parent has sole legal and/or physical custody of the children.
The above assumptions represent the cornerstone of joint legal custody. In fact, if the parties cannot agree to be joint legal custodians, the court usually will not endorse such an arrangement if the matter goes to trial. In other words, the court most likely will be required to make a decision as to which parent should be the sole legal custodian of the children, with the other parent having the right to be consulted, but not to be a final decision-maker. In certain circumstances, the court may grant one party the right to make certain decisions, such as medical ones, and the other party the right to make other decisions, such as educational ones.
It also has become more common for parents to agree that in the event there is an impasse with regard to one or more decisions involving the children, they may turn to someone else, such as a parent coordinator, to assist them in making the decision.
As to the physical time each parent spends with the children, this depends, in part, upon your career or professional demands, each parent’s schedules, each parent’s lifestyle, and the care-giving abilities of each parent, including his or her sensitivity to the health, educational, and emotional needs of the children. We will be happy to discuss your situation and provide you guidance in dealing with such a delicate matter as custody.