DOES SOLE CUSTODY PREVENT THE NON-CUSTODIAL PARENT FROM MAKING ANY DECISIONS?
By Sari M. Friedman, General Counsel
Fathers' Rights Association (NYS & Long Island)
How Does Joint Custody Differ from Sole Custody?
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
- 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.
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.
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.
Contact a Long Island divorce lawyer at Friedman & Friedman to learn more.