When Joint Legal Custody Means Sole Legal Custody

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Many times we see agreements or decrees that say the parents have joint legal custody and the mother (or the father) has physical custody of the children.

Legal custody is about long term parenting decisions, such as the education, health and religion of the children.  Joint legal custody means the parents are to make those decisions together.  Both have an equal vote and each has a veto power.

Physical custody means where the child resides most of the time.  The other parent has visitation or access or timesharing.  Each parent has care and custody of the child when they are with them, and can make day to day parenting decisions alone.

Here’s where legal world and real world part company.  In the legal world, long term decisions are required to be made by agreement.  But in the real world, if mom decides on her own to make Dr. A their pediatrician, dad usually doesn’t object.  If dad does object, his only recourse is to take mom back to court and that usually costs more money than it is worth.

So sometimes, joint legal custody and primary physical custody ends up being, as a practical matter, the same as sole legal custody.

/by James J. Gross

Visitation Schedules

There is no such thing as a standard visitation schedule. Visitation can be anything on which the parties agree. Here are several examples, together with the percentage of the year that visitation amounts to, courtesy of California Child Support Services.

  • 1 weekend per month (7%)
  • 1 3-day weekend per month (10%)
  • 1 2½-day weekend per month (8%)
  • 2 weekends per month (13%)
  • 1 weekend per month and 1 evening per week (14%)
  • Alternate weekends (14%)
  • Alternate weekends + 2 summer weeks (18%)
  • Alternate weekends, ½ holidays and 2 summer weeks (19%)
  • Alternate weekends, ½ holidays and 2 summer weeks (Parent 2 also has 2 summer weeks ) (18%)
  • Two 3-day weekends per month (20%)
  • Two 2½-day weekends per month (16%)
  • Alternate weekends and 1 evening per week (21%)
  • Alternate weekends and 1 overnight per week (28%)
  • Alternate 3-day weekends (21%)
  • Alternate 2½-day weekends (18%)
  • Alternate weekends, ½ holidays and 4 summer weeks (alternate summer weekends with makeups) (21%)
  • Alternate weekends, ½ holidays and 4 summer weeks (no alternating summer weekends) (21%)
  • Alternate weekends & ½ holidays and ½ summer (with or without alternate summer weekends) (22%)
  • Alternate 3-day weekends plus 1 evening per week (28%)
  • Alternate 2½-day weekends plus 1 evening per week (25%)
  • Alternate 3-day weekends plus 1 overnight Weekend per week (36%)
  • Alternate 2½-day weekends plus 1 overnight weekend per week (32%)
  • Alternate Weekend, 1/2 Holidays, 1 Evening/Week, 4 Summer Weeks (alternate weekends in summer, with makeups) (28%)
  • Alternate Weekends, 1 Evening/Week When School is in Session, and 1/2 School Vacation (28%)
  • 3 days per week (43%)
  • First, third, and fifth weekends (15%)
  • First, third, fifth, 3-day weekends (23%)
  • First, third, fifth, 2½-day weekends (19%)
  • First, third, and alternate fifth weekends (14%)
  • First, third, alternate fifth 3-day weekends (21%)
  • First, third, alternate fifth 2½-day weekends (18%)
/by James J. Gross

Kids News

Laura Doerflinger, MS, a licensed mental health counselor, has a good idea for co-parenting by email.  She suggests each parent pick a day to publish a Kids Mail email.  For example if you drop the children off Sunday night, publish Kid News Monday morning.  What to include?

  1. School:  Grades, homework, school incidents, forms that need to be filled out, conferences,  etc.
  2. Health:  Colds, doctor appointments, dentist, counseling, moods, etc.
  3. Financial:  Payments due or parenting plan division of costs for activities, medical expenses, etc.
  4. Schedule:  Changes to the current schedule, changes in your child’s plans, holiday times, etc.
  5. Vacations:  Clarification of times and plans – phone numbers, etc.
  6. Upcoming Events:  Social, school, extracurricular or sport activities.

Doerflinger suggests avoiding control issues by not giving instructions and relating only the facts.  Limit the news to co-parenting issues.  This is not a place to discuss your relationship.  Respond to the items that need responses and be sure to thank the other parent for the effort.

/by James J. Gross

Putting the Fault Back in No-Fault Divorce

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Years ago Maryland and Virginia added no-fault divorce grounds to the traditional fault grounds.   DC has moved completely to no fault grounds.  However, even if you file on no-fault grounds, marital misconduct still comes into play in all three jurisdictions.

Alimony. In each jurisdiction, the law provides a list of factors the court must court must consider in determining alimony.  In Maryland and DC, one of the factors is circumstances surrounding the estrangement of the parties.  In Virginia, adultery can prevent a spouse from receiving alimony unless the court finds that would create a manifest injustice.

Property. In determining how marital property is to be equitably distributed, each jurisdiction has another list of factors the court must consider.  In Maryland, there is a catch all provision that includes any other factors that the court considers appropriate.  In Virginia, one factor is circumstances contributing to the dissolution of marriage.  In DC, it is circumstances contributing to the estrangement.

Custody. Marital misconduct does not necessarily make you a bad parent.  The test is best interest of the children.  But the parties think it is important that the judge know what a scoundrel the other parent is, especially if the other parent is slinging mud, too.

As a result, the parties spend 90% of their time in discovery and trial trying to prove fault.  While most of the judges I’ve talked to say it affects their decision by 10% or less.

/by James J. Gross

Keep a Diary

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“Now, mam’m, you say that Mr. Jones never spent time with the children?” the father’s attorney says to the mother who is on the witness stand.

“That’s right.”

“Well take a look at this doctor’s report that says Mr. Jones took the children to four out of the last five visits.  Did I read that right?”

“Yes.”

“And do you recall that Mr. Jones was at the school recital on November16?”

“Yes.”

“And he coaches their basketball team, doesn’t he?”

“Yes.”

“He took the children to the movies on Thanksgiving Day, didn’t he?”

“Yes.”

Trial Note to Dads:  Small details can add to your credibility and take away from Mom’s credibility at a custody trial when Mom claims you don’t spend any time with the kids.   Testimony is evidence, but so are doctor’s reports, school records, and your journal or diary of time spent with your kids.

/by James J. Gross

Relocation Clauses for Parenting Plan

Divorce Agreement Relocation Clauses for Parenting Plan

Relocation can wreak havoc with parenting plans.  While the court can’t interfere with a person’s constitutional rights to live anywhere they please, it can change the custodial parent of the child. There are different relocation clause options in divorce agreements to address this issue ahead of time.

First, you can require notice prior to any move so that the objecting party has time to ask the court to review custody. Here’s an example from a Parenting Agreement for my state:

Under Maryland law, a move out of state with the minor children by the parent with legal custody constitutes a change in circumstances that warrants a review of the residential arrangements.  Therefore, the parent with legal custody shall notify the other parent at least 45 days in advance of any contemplated move (and sooner if possible), and the parents shall cooperate to work out a new visitation schedule.  In the event that a new visitation schedule cannot be agreed upon by the parents, the parents shall promptly submit the issues raised by relocation to mediation.

Second you can set up an alternative time-sharing schedule in your Parenting Plan, to become effective in the event one parent moves over a certain distance from their current residence.  Here’s the introduction to such an alternative schedule:

If the parents live more than one (1) hour apart driving door to door, the following schedule will be presumed to be in the best interests of the children.  It provides the minimum visitation and parents are encouraged to agree on additional visitation.

Finally, you could try to have a non-relocation provision in your Parenting Plan, such as the following example:

The parents agree that neither one will relocate more than 50 miles from their current residence without the consent of the other or an order of the court.

Note that the court has the power to override this non-relocation provision if it finds that relocation is in the best interest of the children.  You may want to add language stating that the parties agree that the best interest of the children lies in being raised in the present location.

/by James J. Gross

How to Handle Halloween Visitation

Halloween is coming up at the end of this month.  It is a holiday that might be easily overlooked in a visitation schedule because it may not be as important as other holidays like say Thanksgiving or Fourth of July.

But Halloween is terribly important to children.  There are several ways to handle Halloween.

If you are still on good terms with your ex, you can agree to split Halloween parenting duties.  One will stay in the house and the other will go trick or treating with the kids.  You can trade off after a couple of hours.

Or, if you live close enough, the kids can go trick or treating in mom’s neighborhood with mom and dad’s neighborhood with dad.

If that doesn’t work, then you can alternate the holiday, having Halloween with dad one year and mom the next.

/by James J. Gross

Child Custody Battles Across International Boundaries

Sometimes child custody battles spill across international boundaries.  The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a treaty.  The US and several other countries have ratified it.

The purpose of the Hague Convention is to protect children from being abducted and kept across international boundaries.

The Convention sets out a procedure to bring about a prompt return of such children. The “Child Abduction Section” provides information about the operation of the Convention and the work of the Hague Conference in monitoring its implementation and promoting international co-operation in the area of child abduction.

It is important to note that the Convention ceases to apply when a child attains the age of 16 years.

/by James J. Gross

Same Planet Different Worlds

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Deposition of Husband:

Q: And what did your wife contribute to the marriage?

A: Nothing.  I supported her and the children throughout the marriage.  And all their friends and pets and a maid, a handyman and a gardener.  I was the only one that worked.  I made all the money.  She didn’t contribute a dime.  All she did was spend it.

Deposition of Wife:

Q: And what did your husband contribute to the marriage?

A: Not a thing.  I took care of the kids, bandaged their boo-boos, dried their tears, helped them with their homework, made dinner for everyone, took them to soccer, arranged all the doctor visits and went to all the parent teacher meetings.  My husband just worked all the time and contributed nothing to the marriage.

/by James J. Gross

Custody in Same Sex Marriages

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A few years ago, I heard the heart-wrenching story of a woman–I’ll call her “Julie”–whose same sex partner adopted a little girl from China.  Both women actively participated in the life of this child; both of them considered her their daughter.  But Julie didn’t think to seek formal adoption.

When the two women separated, Julie’s partner refused to allow her to see their daughter, and the court had no jurisdiction to compel visitation.  In fact, the custody issues in the case were heard in Juvenile Court rather than Family Court.  Because of the animosity between the couple, this little girl lost contact with a loving parent.

The acknowledgment of same sex marriage may avoid the sad situation that happened to “Julie.”  In general, a child born or adopted during a marriage is considered to be a child of both parents.  Thus, Julie and her partner’s little girl would be entitled to have contact with both of them, and to be supported by both of them, if their marriage failed.

It appears that change is coming.  But while the law is in flux, it is a good idea for same sex couples to be vigilant and to consider the consequences of a decision to marry . . . to relocate . . . and to have children.  While many issues can be resolved by agreement (before and after the marriage), some issues remain within the province of the law.  Obtaining a legal resolution can be financially challenging and personally disheartening.  Nobody wants to anticipate divorce; people tend to learn about it on as “as needed” basis.  But, especially in an area of the law that is uncertain, it is wise to plan for any eventuality.

/by Jill Breslau