Parental Custody Is Sometimes Out Of Joint?
Guest Author, Anne Kass, - a retired District Judge of Albuquerque, New Mexico

In 1980, as a lawyer, I represented a father who was seeking custody of his 5-year-old son. The case was handled in the traditional, adversarial way. We hired a psychologist who interviewed both parents and the child and who gave the opinion that while both parents were fit, the father was fitter. He should have custody. The mother and her lawyer hired another psychologist who likewise interviewed the parents and the child and opined that while both parents were fit, the mother was fitter. She should have custody.

Off to court we went. During two days of trial, the parents said awful things about one another. Ultimately the Judge ruled that the mother would have custody. The Judge also ruled that the father would have visitation--three weekends each month, Wednesday overnight each week, eight weeks each summer and half the holidays.

I will never forget the look of pain on my client's face. He felt he'd been changed from a parent to a visitor.

I was astonished to notice that the mother appeared as distraught as the father.

After puzzling about it, I realized that the mother's distress stemmed from her expectation that if she were awarded custody, the father would disappear--that she would never have to deal with him again. Upon learning that she would have to interact with the father, regularly and frequently, she felt she'd won nothing. I then realized that my client, the father, had gone to court with the same fantasy expectation--that he would be awarded custody and the mother would disappear.

I concluded that a large number of custody law suits were generated from a failure to define terms. Litigants go to court in a win/lose frame of mind. Winning is expected to mean that one gets what one wants. What many divorcing parents want is to eliminate the other parent from their own and their children's lives.

Anyone who has experience with children who actually lose a parent through divorce knows that such a loss inflicts terrible suffering on the children. The parent may disappear from the children's day-to-day lives, but the parent never disappears from the children's hearts and minds.

Toward the goal of preventing children from suffering the loss of a parent through divorce, the legal system has created the concept of joint or shared custody. Unfortunately, the legal system has failed to adequately define terms.

The general legal definition of joint or shared custody is that both parents have legal rights and responsibilities for major decisions which concern the children.

The general belief of parents is that joint custody means equal time with the children and that any and all decisions must be jointly made. Some parents believe joint custody means equal financial responsibility for the children.

Anyone who has experience with children who actually are made to live equal time with each parent knows that many of those children suffer from a sense of instability and a sense that they have no home base. (Obviously equal time does work for some children.)

Also, anyone who has experience with divorced parents who hold significantly different beliefs about how to parent (as many divorced parents do) knows that it is highly unlikely that they will be able to reach joint decisions about much of anything. Teachers in our school system have shared with me horror stories about children who are deprived of going on school field trips because the parents can't agree about it and won't give joint approval and about children who are unable to select a class schedule because their parents can't agree.

Finally, it seems quite obvious that equal financial responsibility for people who do not have equal financial resources is both illogical and unfair.

The 1986 New Mexico Legislature created a joint custody statute which actually provides a detailed, practical definition of joint custody--what it is and what it is not.

The New Mexico statute states that joint custody does NOT mean equal time and it does NOT mean equal financial responsibility.

New Mexico's joint custody statute, simply put, provides that joint legal custody means that neither parent is allowed to "surprise" the other. That is, neither parent may make a decision or take an action that results in a major change in a child's life unless the other parent agrees or the Court allows it. The statute specifies five "major changes," which are: residence, religion, health care, education and recreation.

To make joint custody work, parents should first recognize the status quo as to each of these "major change" matters. For the most part they should determine what was in place before the parents filed for divorce as to residence, religion, health care, education and recreation; and then, based on the principle that consistency is generally in the best interests of the children, the law provides that neither parent may unilaterally modify any of the five status quo matters.

If one parent wishes to make a major change, he or she should make a written change proposal to the other parent, who then has the duty to actually investigate the proposed change and respond. If the parents deadlock--one wants a change to occur, and the other wants no change--the rule is that no change may be effected until the Court, or some other, agreed-to-authority, e.g., an arbitrator selected by the parents, approves the change.

Parents should recognize that the five major changes specifically addressed in our statute are not the only matters that should be discussed by them, but they are the only matters that MUST be mutually agreed to or submitted to an authority for resolution. Parents should find it useful to follow the golden rule of joint custody, which is: before taking an action concerning your children, ask yourself: if the other parent did this without my knowledge or approval would I be upset? If the answer is yes, consider it a major change that invites prior discussion.

Parents should also recognize that ANY action or activity for which one parent wants or expects the other parent's support or financial contribution, is a major change that needs advance discussion.

The bottom line about all this is that divorcing parents need to recognize that a divorce DOES NOT END their relationship with one another, it merely changes that relationship.

Joint or shared custody can work IF the parents can come to a common understanding of what it is, but as with so many things, it is essential to define the terms.




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