High Conflict Divorce and Joint Legal Custody – By John P. Paone, Jr. and Megan S. Murray, Esq.


In New Jersey, parents with young children who are going through a divorce must face the difficult task of resolving the issue of custody. Most parents think of custody as a determination of where their child will live and what day-to-day schedule parents will follow with regard to caring for their child. In the law, this is referred to as “physical custody.” An equally important issue, however, which many parents overlook concerns the determination of “legal custody.”

Legal custody involves the allocation of decision-making authority over important matters concerning the children. Who makes major decisions that arise affecting the health, education and welfare of the children depends upon how legal custody is addressed.

In general, New Jersey courts are pre-disposed to awarding fit parents joint legal custody. This requires the parents to consult with each other toward reaching agreement as to the major decisions affecting the lives of their children. However, this pre-supposes a willingness of ex-partners to effectively communicate with the desire to come to agreement regarding decisions in their children’s best interests.

In cases where communication and cooperation between the parties is non-existent, joint legal custody may not be appropriate. If the parties are granted equal decision-making power but lack the communication skills and cooperation necessary to make a joint decision, a joint legal custody arrangement sets the parties up for post-divorce litigation over an array of decisions to be made regarding the children regardless of the level of significance. This was most recently demonstrated in the case of Madison v. Davis where a family court judge was required to determine a dispute between parents holding joint legal custody over which preschool their child would attend. The Madison case demonstrates how in some cases joint legal custody can create litigation and make the children victims of their parents’ inability to make joint decisions on their behalf.

Many parents are able, despite the acrimony which exists between them, to put aside their differences when it comes to making choices regarding their children. However, where the parties are unable to effectively communicate as to the health, education and welfare of their children, or where there is evidence that one parent may use joint legal custody as a weapon to harass the other parent, joint legal custody may be detrimental to the child.

While joint decision-making power regarding major issues affecting the children is appropriate in the vast majority of cases, it may not be appropriate in every case. Parents going through a divorce should discuss with their attorneys whether joint legal custody is appropriate—especially in those high conflict cases where the parties seem to be wholly unable to agree upon anything as it relates to their children.

Middlesex County Office

Monmouth County Office

 

 

©Copyright 2015 PZBM