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 lessthan 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 2nd 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 2d29 (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.Onthe 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.
