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Primary Custodial Parent – A Higher Duty

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By:  Deena L. Betze, Esquire

My clients with children are often faced with a barrage of custody and parenting terms that are ambiguous, confusing, and sometimes meaningless to them. Joint custody, sole custody, shared parenting, primary physical custody, joint legal custody… In most instances, their real concern is protecting their children from the damage that can be inflicted upon them by a contentious divorce and traumatic transition when their parents separate. First, a quick primer on some of the terms used in New Jersey custody and parenting time matters:

• Joint Legal Custody: the parents consult and attempt to agree on major decisions affecting the health, education and welfare of the children.
• Sole Legal Custody: one parent has the ability to make major decisions affecting the children’s health, education and welfare.
• Parenting Time: the time a child spends in the care of a parent.
• Shared Parenting: generally, this is an equal or close to equal parenting time arrangement, with the child spending approximately the same amount of time with each parent.
• Joint Physical Custody: the children spend time living with both of their parents.
• Sole Physical Custody: the children reside only with one parent.
• Primary Physical Custody: the parent with whom the children reside most of the time and have their official address is the primary custodial parent.

In many cases, although the parties share joint legal custody, one parent is designated as the parent of primary residence. The children reside with that parent and have parenting time with the other parent. I try very hard to educate my clients on what I call the “higher duty” of the primary custodial parent to foster and encourage the children’s relationship with the other parent, which they are in a uniquely powerful position to influence. I give all of my clients with children a copy of the “Children’s Bill of Rights” promulgated by the New Jersey Superior Court and reprinted below:

CHILDREN’S BILL OF RIGHTS

1. The right not to be asked to choose sides between their parents.

2. The right not to be told the details of a bitter, nasty divorce.

3. The right not to be told bad things about the other parent’s personality or character.

4. The right to privacy when talking to either parent on the telephone.

5. The right not to be cross-examined by one parent after visiting or talking with the other.

6. The right not to be asked to be a messenger from one parent to the other.

7. The right not to be asked by one parent to tell the other parent untruths.

8. The right not to be used as a confidante regarding the divorce proceedings by one parent or the other.

9. The right to express feelings, whatever those feelings may be.

10. The right to choose not to express certain feelings.

11. The right to be protected from parental warfare.

12. The right not to be made to feel guilty for loving both parents.

I cannot stress strongly enough how important it is for a parent to abide by these rules—even (and often, especially) if the other parent is not. Moreover, I tell my clients who are primary custodians that they have a responsibility to encourage their children’s relationship with the other parent and to ensure that they feel comfortable expressing their love of the other parent without fear of being disloyal to the parent with whom they live.

I tell my clients all the time that their child’s mother and father are each a part of them and tied into their identity. Making disparaging remarks about a child’s other parent is perceived by that child as a personal attack on them and can be internalized. “If my Dad is stupid, I must be stupid too.” The way the custodial parent talks about and treats their children’s other parent is observed very closely and often modeled by the children. If you want your children to be confident, respectful adults, you must treat their other parent with respect and respect the importance of their time with your children and their role in your children’s lives. Remember, all things being natural, you are going to have to have a relationship with your child’s other parent for the rest of your life. It will be nicer for everyone, especially your children, if that relationship is based upon mutual respect.

It is also important to make the time children spend with their other parent as routine and non-negotiable as possible. I often remind parents that they do not negotiate whether their children attend school, soccer practice or piano lessons. Time with their other parent should be the same. This will have the added benefit of making a child feel more relaxed about transitioning between homes.

In every divorce I have handled involving children, my clients, without fail, tell me that safeguarding their children from the trauma and damage divorce can cause is the most important goal they have. I tell them that if that is the case, they must do everything they can to make their children feel safe expressing their love for the other parent, which often means putting aside their own emotional frustrations. Doing so will go a long way toward minimizing the negative impact separation and divorce can have on a child. The parent with whom the children live is by far the most influential person in their lives and has a higher duty to ensure the children have a healthy relationship with the non-custodial parent.