DOES SOLE CUSTODY PREVENT THE NON-CUSTODIAL PARENT FROM MAKING ANY DECISIONS? 

BY Sari M. Friedman, Legal Counsel
Fathers Rights Association LI and NY

How does joint custody differ from sole custody?

Joint legal custody gives both parents the right to joint decision making on issues affecting the child that have more than daily impact. Minor child raising issues such as what to wear or eat that day or the child's social activity for the day would be made by the parent with whom the child is living that day. However, major decisions would be jointly made. What is usually considered major?

Choice of school and summer camp

Choice of physician, choice of medical procedure

Extracurricular activities: sports, music lessons, etc.

Religious education

If one parent has sole custody, then that parent would make the major decisions, simply keeping the other parent informed. Does this mean the non-custodial parent has no decision making rights? Usually, but not necessarily. We will give examples later.

Does Joint Custody Mean Equal Physical Time?

Not necessarily. Joint legal custody does not even refer to time. The time division can actually be the same for joint or sole custody. In fact, with joint custody, the time arrangements in any instance could be less than in another instance including sole custody.

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Do New York State Courts Favor Joint Custody?

It is not usual for the courts of New York State to order joint legal custody unless both parties agree to settle their case with joint legal custody and request that that become an order. Then the Court will make it an order.

Will the Court order joint legal custody if both parties do not agree to it? Usually, they will not. The leading case in New York on this issue is Braiman v. Braiman 44 NY2d.5884; 407 NYS2d 449 (1978) Braiman states that where the parties are embattled or hostile toward each other, and if they are unable to work together to make joint decisions, then the courts will not order it. In the rare instances where the Court has ordered joint legal custody without the agreement of the parties, the Appellate Courts have overturned it. (Citing Braiman v. Braiman)

Do the Courts Ever Order Final Decision Making to the Non-Custodial Parent?

Only in rare instances. But there is precedent for it in the First and Third Judicial Departments.

The First Department, in Trapp v. Trapp 136AD3d 178, 526 NYS 2 nd 95 (1988) did not award joint legal custody, but allowed joint decision making in respect to religion and citizenship, finding the parents who were highly antagonistic to each other, would not have to consult often on these issues which play a profound role in the child(ren)'s heritage.

In the First Department case of Mars v. Mars 286 AD. 2d. 29991; 729 NYS 2d 29 (01), the Court awarded custody to the stay-at-HOME mother but vested final decision making on religion and dental care to the father. This was based on the fact that the father demonstrated greater interest in the children's religious upbringing. On the issue of dental care, he was given decision rights because of his professional expertise.

Because the Court found both parents to be controlling, impulsive, self-centered and judgmental, and could not be trusted not to interfere with the other's relationship with the children, the Court ordered that both parents were to consult with each in their areas of decision making.

In Frize v. Frize 266 A.D. 2d 753, 698 NYS 2d 764 (1999), the Appellate Division Third Department, affirmed the Family Court decision to grant the mother sole custody. Nevertheless, the Court granted the father sole decision making authority over the child's education. This odd allocation of responsibility was based on the fact that the father was well versed in all aspect of the child's "special needs" education whereas evidence showed that the mother had a poor relationship with the school, that she was inflexible and inaccessible to the teachers and the School District.

In Davis v. Davis 240 A.D. 2d 928, 658 NYS 2d 548 (1997) the Third Department affirmed the Family Court order granting the mother sole custody. But the Court gave the father the ultimate decision-making authority in the child's religious upbringing and educational needs.

In Winslow v. Winslow 205 A.D. 2d 620, 613 NTS 2d 216 (1994), the Appellate Division, Second Department, did not directly have an appeal before it despite the fact that the law of the case granted final decision making authority on different issues to each of the parents. Since the appropriateness of that order was not before it, the Court upheld the decision, at a later appeal, that directed the children to attend a particular school chosen by the parent who had been granted authority to make that decision.

Conclusion

Although it is not common practice for a court to award split decision making, such awards are not without precedent. Certainly, if a party does not believe he or she will be awarded sole custody, but believes he or she has much more involvement and experience in one or more areas of decision making, it is important to discuss with your attorney the precedents (such as those cited here) and to ask the Court for final decision making authority in a designated area, or areas.