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Primary Custodial Parent – A Higher Duty

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.

Which Pre-School? Which Parent? (Beck or Pascale?)

By: Lauren E. Hagovsky, Esq.

In the recent Appellate Division case, Madison v. Davis, 438 N.J. Super. 20 (2014), the parents entered into a marital settlement agreement whereby they agreed to share joint legal custody of their three-year-old daughter. Mom was designated as the parent of primary residence. The parties agreed to equally share the cost of future work-related childcare and for Dad to be added as an emergency contact at “any school and/or day care provider” and, once the child was of school age, he would be authorized to obtain all information directly from the school.

Less than four months after the divorce was finalized, litigation ensued when Mom unilaterally changed their daughter’s day care provider to another pre-school. Dad filed a motion asserting that Mom violated his parental rights by unilaterally switching their child’s preschool without his authorization. Dad relied on the principles of Beck v. Beck, 86 N.J. 480 (1981), which defined joint legal custody as giving both parents equal decision-making regarding their children’s care, education and welfare. Mom relied on the principles of Pascale v. Pascale, 140 N.J. 583 (1995) in which the primary residential parent is generally in charge of arranging alternative care, such as babysitting or daycare, and has autonomy to make day-to-day decisions about the child.

The court noted that pre-school is not purely “school,” nor is it purely “daycare;” rather, it is a hybrid between the two. In New Jersey pre-school is not mandatory but an elective option for parents. However the judge recognized that it serves a dual purpose: 1) to provide responsible care during normal work hours, and 2). To provide meaningful education and socialization for the child. The court also decided that it could not strictly apply Beck nor Pascale, but instead would do a hybrid analysis.

The court set forth a 7-step analysis and principles to determine the parties’ dispute.

  1. The parent of primary residence (PPR) has the initial right to select a program if it is being used extensively for work-related day care.
  2. The PPR’s selection must be reasonable, considering the cost, location, accessibility, curriculum, etc.
  3. The PPR has an obligation to provide notice of any proposed change in provider within a reasonable time to the parent of alternate residence (PAR).
  4. The PAR has the right to investigate the proposed program. If the PAR does not agree, the PAR may apply to the court for a ruling. In such case, the PAR has the burden to show that the PPR’s selection was unreasonable.
  5. If the PAR decides to challenge the proposed pre-school, a reasonable alternative plan must be included in the PAR’s court application.
  6. The court may decide to override the initial proposed pre-school and order different arrangements or may determine it is reasonable and allocate the cost between the parties.
  7. Counsel fees may be awarded if the judge determines that a party was acting unreasonably.

Ultimately, this process combines the principles of Beck and Pascale and continues to focus on and promote the best interests of the child. In applying the analysis to this case, the court found that Mom exercised reasonable parental discretion in her decision to change the child’s pre-school based on the cost, location and services offered. The court further found that Dad had the right to bring his objections to the court, but in this particular case, he failed to show that the transfer was unreasonable or burdensome on the child and the parents.

Custody and Parenting Time

There are two types of custody typically addressed when parents separate or divorce; legal and physical/residential custody.  Legal custody generally relates to decision making as to the children’s health, education, safety, welfare and sometimes religious upbringing.  Physical or residential custody relates to the issue of with which parent the children will primarily reside and how much time and when they will spend with the other parent in his/her home, or possibly a true, shared 50/50 parenting plan.  Most parents have joint legal custody of their children, however, that does require that the parents are able to have some communication and the ability to consult and confer with each other regarding the children. The court is required by law to determine what custodial arrangement is in the best interests of each child.  Parents who cannot agree on a custody arrangement are required to attend custody mediation with a court approved mediator, which is generally provided by the court at no cost to the parents.  If the parents are not able to come to an agreement as to custody, the court may appoint a custody evaluator, a psychologist who will conduct psychological evaluations of the parents, possibly also of the children depending on their ages, meet with the parents and the children, and who will write an evaluation report with a recommendation.  Such evaluations are often very expensive.  Prolonged custody battles are generally detrimental to the children. It is best for the children to have as much contact as possible with both parents.  The current trend in the law, and in the court system, is to allow both parents as much access to the children as possible, unless there are serious issues relating to the mental health of one of the parents, proven allegations of abuse or neglect, domestic violence, or proven drug or alcohol abuse by a parent.