By Law Office of August J. Landi |February 09, 2020
When Parents Agree & Work Collaboratively
If you and your spouse remain able to parent successfully and joyfully as you have in the past; and if your children are thriving personally and in school, you may opt to go on to another section of this website. Many parents are able to agree there should be "Joint Legal Custody" post-separation and divorce. This term is frequently confused with "shared residential custody" which speaks to near equal parenting time in each home post-separation or divorce. Joint Legal Custody is not concerned with parenting schedules. A father living in California who sees the children during the summer months can have Joint Legal Custody. Rather, Joint Legal Custody describes the decisional path for resolving parenting disputes- especially where there are major issues involving the children's health, safety, education and general welfare. Parents who value and respect each other's child care and child raising skills opt for Joint Legal Custody language in their divorce agreements.
When Parents Do Not Agree
If you initially conclude that it will be impossible to sit down with the other parent of your children and work out some practical rules for the road following separation, then your first step should be to jointly consult a child psychologist or trained mental health professional for the purpose of resolving child-related issues in a child-sensitive way without resorting to contested custody litigation. If you and your spouse are unable to sit down together and talk about protecting your children from the adverse consequences of separation and divorce, try reading a sample of "Joint Custody with a Jerk: Raising a child with an uncooperative Ex", by Julie Ross and Judy Corcoran. It can be found on Amazon.
If informal attempts initially fail, do not be disheartened. Over time, your spouse may see there is a benefit to the children and significant emotional and financial cost savings, by journeying on an alternate route to resolving custody and parenting issues- as compared to traditional custody litigation. The sooner this occurs, the better for your children.
Children are often triangulated into turbulent separations and divorces. Fear of loss, anger, jealousy and retribution power up divorce litigation, with each parent focused on proving the other wrong or inadequate (which may or may not be the case). Children are impacted adversely in the process. Quotes from New Jersey case law cited further on speak to this issue. Psychologists, attorneys and judges agree that judicial decisions relative to custody and parenting time should only be invoked as a last resort when other alternatives to resolve these issues have failed or clearly are not worth trying.
Unless there are "emergent" or "exigent" circumstances, trial judges requested to make custody decisions will refer parents to one or more of the following interventions to defuse the dispute is possible; and empower the parents to resolve their custody and parenting time issues:
(a) Custody mediation at the court house- a free service offered by the Court.
(b) Co-parent counseling- the parties may be ordered to attend co-parent counseling as a condition precedent to moving ahead with custody litigation.
(c) Appointment of a Guardian ad litem to serve as the eyes and ears of the Court. Where parent's factual reporting to the Court is in conflict, the Court under Rule 5:8B can appoint an attorney or other trained professional to find out what is actually going on. Upon appointment, serve the Court rather than either party. After seeing parents and children in their homes, speaking with counselors and teachers and performing other "due diligence", the G.A.L. writes a report to the Court setting out steps taken, findings of facts and recommendations for resolution. Often times this results in resolution of the dispute.
(d) Custody Neutral Assessment- the Court or the parties and counsel will select a psychologist or other mental health professional from an approved list. That "expert" will meet with each of the parties and the children; and thereafter write a short report to the Court- a Custody Neutral [CNA] Assessment- setting out impressions as to how the case should resolve.
(e) When all else fails, what traditionally follows is the retention of one or more "custody evaluation" experts who are called upon to provide a "best interests" report with findings and recommendations as to what custody and parenting arrangements should be implemented post-divorce. Costs can increase astronomically. Psychologists serving as custody evaluators frequently charge $5,000.00 as a retainer to get started; and $7,500.00 or more by the time the report is completed + $3,000.00 for each trial date they are in Court testifying. Legal fees depending on hourly rates can range between $2,000.00 and $4,000.00 for preparation and attendance at Court per trial date. Custody trials are expensive, unwieldy and take on a life of their own, spread over several to many court days. Judges are not forced to ever meet the children or speak to them- yet they are empowered with determining all aspects of their lives where parents can not agree.
This is a truly bizarre decisional process reminiscent of the dark ages between 400 and 1400 when science and hands on inquiry took a back seat to pontification and speculation. Let me spell this out more clearly:
1. The 2 parents are totally polarized and unable to co-parent. Each accuses the other of being unfit.
2. Court mediation fails and the Court appoints a "forensic custody evaluator" to resolve the custody issues centering around: where the children should live and whether there should be sole decision making by one parent or joint decision making by both parents post-divorce.
3. A year goes by. The custody evaluation is completed. The Court schedules a settlement conference. The case does not settle and trial is set for two months hence.
4. Trial takes place over the course of a month. Each parent denigrates the other attempting to prove such parent unfit. Three months later the Trial Judge renders decision after opting NOT to meet the children. The cost of the litigation exceeds $100,000.00. Some custody cases have cost three or more times that amount.
5. There is a better way and a modern up-to-date "last resort" intervention that avoids old-fashioned contested custody trials.
InJohnson v. Johnson (2010), the New Jersey Supreme Court approved the Alternate Dispute Resolution ("arbitration") path adopted by the parties; and upheld the position taken by August J. Landi in this leading case. It is now "OK" to have custody issues resolved by an experienced child psychologist or other mutually selected expert. Proceedings take place in an informal setting outside of the courthouse.
In Johnson, the parties selected a well-known forensic custody psychologist to decide chronic parenting issues via an ADR proceeding- rather than a court trial. The parties and counsel met with Mark White, Ph. D. and placed the issues in his professional hands for resolution. Dr. White met with the parties and the children and then rendered a thorough Arbitration Award with findings of fact forming the basis for the conclusions reached. Dr. White's decision was upheld by the New Jersey Supreme Court. Counsel for the parties did not attend ADR sessions with Dr. White. A separate forensic custody expert was not hired since Dr. White has over a quarter of a century of experience in this field of endeavor. Costs for this process were likely one-tenth of what they would have been had the parties engaged in competing custody experts and conducted a trial spread over many days at Court.
It is impossible to get into the weeds of a cost/benefit analysis of the varying interventions available to resolve your custody dispute. Each family dispute presents its own somewhat unique fact pattern. For present purposes, simply recognize that there are alternatives that should be discussed with legal counsel, both initially and at all phases of your case, to assure that conflict is managed appropriately. Why anyone would invest in costly time consuming and heart-wrenching custody litigation is beyond my ability to comprehend.