Custody and parenting time are without doubt the two most vexing issues in matrimonial law requiring professional skill and temperament to resolve the issues or present them to a court for determination. In most cases Joint Legal Custody is the norm. Joint Legal Custody means that the parents are to make joint decisions regarding the health, education and welfare of their children. This has no bearing on where the children live or how the parenting time will be allocated between the parents. Generally, one parent will be designated as the Parent of Primary Residence and the other designated as the Parent of Alternate Residence. In some cases, the parents share physical custody equally and the latter designations do not apply. While an amicable resolution is in the best interests of the children, courts are often called upon to decide custodial placement and parenting time guidelines if the parties cannot agree.
Before such matters are litigated, the court will (in the absence of a domestic violence restraining order) require the parties to participate in mediation through the court system with a trained member of the court staff to see if custody and parenting time can be resolved early in the proceedings. If mediation is successful, the mediator will draft the terms and provide them to the parties who can review them with their respective attorneys in advance of affixing their consent.
If mediation is unsuccessful, the mediator will simply inform the judge without disclosing the details. At that point, the issue is usually handed over to a psychologist who will interview the parties and children in various combinations, administer psychological testing and issue a written Custody and Parenting Time Evaluation. This Report is not determinative of the issues but intended to provide the court with information and recommendations upon which to base its ultimate decision.
The final stage is a hearing on custody and parenting time which is most often part of the larger divorce trial. Both parties have the opportunity to testify, as does the custody expert (or experts if both or either party hires their own expert) and other witnesses, following which the court will enter its decision. Litigated custody cases, which carry no small element of risk, can involve many trial dates and the legal fees and expert fees accumulate quickly.
Because this process is lengthy and costly, if it is possible to resolve the often thorny issues of custody and parenting time without litigation, skilled lawyers will urge their clients to do so. Not every custody case has to be litigated to conclusion. In fact, statistics show that a very significant percentage of parties are able to resolve such problems directly, through mediation or with the assistance of family law attorneys.
There will always be cases where well-intentioned parents cannot agree on what is best for their children, in which case the legal system will be called upon to resolve the dispute. This is a fact of life for family lawyers who should always guide their clients in a direction consistent with the best interests of the children.