SUPREME COURT OF THE STATE OF ANYWHERE

COUNTY OF SOLITUDE

JOINT CUSTODY, Plaintiff,

-against-

SOLE CUSTODY, Defendant.

By: Steven P. Kuhn, Esq.

The way custody of children in a divorce or separation is structured ultimately determines how future decisions affecting the children will be made. Custody arrangements impact day-to-day decisions such as what foods to serve, bedtime hours, clothing selection and leisure activities. Custody arrangements can also influence major decisions, visitation and child support.

In New York, “joint custody” does not necessarily imply that time spent with each parent will be equal. In joint custody, one parent is still designated the “primary” residential or custodial parent. The primary residential parent is the one with whom the child will usually spend more than fifty percent of his or her time. While there may be exceptions, the primary residential parent is usually entitled to receive child support payments from the “non-custodial” parent.

The essence of joint custody is that the parents agree to consult with one another on issues pertaining to the health, welfare, education, religious upbringing and recreational activities of the children. These consultations take place in advance, when reasonably possible, so that there is meaningful input and participation by both parents. Very few parents will stipulate that they must agree on all such decisions because this can create stalemates when there are disagreements on particular issues. In the event of such disagreements, financial decisions may often be made by the person with the greater assets or income and non-financial decisions by the primary residential parent. Either parent has the right, however, to petition the court to make a decision that is in the best interests of the child.

Sole custody is sometimes the only solution for parents who are unable to communicate with each other, treat each other with respect or have completely different values and goals for their children. Parents who cannot overcome their own matrimonial acrimony and collectively decide that they are going to move forward and consult with one another on major impacting decisions should request sole custody. In situations where one parent is completely irresponsible or has caused the child psychological harm, sole custody may also be appropriate.

Sole custody does not extinguish the rights of regularly scheduled visitation by the non-custodial parent. In both joint and sole custody, the non-custodial parent is entitled to visitation, unless the court determines otherwise. Even where a parent has sole custody, the court may require that the custodial parent inform the non-custodial parent of decisions that have been made. The difference is that in this type of custody arrangement the sole custodial parent is empowered to make decisions without consultation with the non-custodial parent.

Parents in the midst of a divorce should assess whether they will be able to maintain a civil and respectful relationship with their soon to be former spouse and thus utilize their combined wisdom to make determinations in the best interests of the children. Parents who can accomplish this are helping their children overcome the stress of divorce and establishing the foundation for sound parental decision-making.