- Custody matters usually become contested matters when the parties find themselves at an impasse on certain issues, and are unable to reach an agreement outside of Court.
- Many attempts are usually made to reach an agreement before a custody matter goes to Court. Attorneys and mediators can help brainstorm and propose a wide range of custody solutions.
- Co-parents and their children are best served if the parents can come to some agreement on the important issues in a child’s life (i.e., school, religion, healthcare). Sometimes this is impossible. In these cases, the Court can help arbitrate between the co-parents.
Custody arrangements usually become contested matters when there is a sharp divide in terms of what the parents want—usually when it comes to one parent wanting the child or children to live with them, versus the other parent wanting the child or children to live with them.
We attempt as best we can through various means—through the attorneys, through the Court, through processes of mediation and counseling—to work out different options prior to taking the case to trial.
For example, we often try to work out shared custody in the pre-trial negotiation phases. If the parties don’t want to do shared custody or don’t deem it to be feasible—perhaps because of issues like the geographical distance between the parents—the parties can attempt to work out divisions of time that would come as close as possible to shared custody.
Ultimately, though, if the parents find themselves unwilling or unable to agree, and if each parent can’t see themselves agreeing to anything within the ballpark of what the other parent is asking for, then custody cases will usually have to go to Court.
What Happens When Parents Cannot Agree on a Child Custody Arrangement?
As stated above, the parents (through their attorneys and with aid of the Court, and potentially mediators, facilitators, or counselors) do whatever they can to attempt to negotiate an agreement. As an attorney, I usually try to walk the parties through all of the different permutations of a possible settlement, no matter what. That is, I will present the possibilities, whether they believe they both want full physical custody, or whether they are willing to entertain the idea of shared custody. I present options like an 8-6 split (where one parent has 8 nights, and the other parent has 6 nights), or a 9-5 split (where one parent has 9 nights, and the other parent has 5 nights) over the course of a 14-day (or two week) spread.
There are many other permutations like this. Often, they are necessary not because of disagreement between the parties, but because of logistical issues. For example, I just settled a custody case where the mother and the father lived around 30 miles apart, and therefore true shared custody (exactly 50%-50% time) was not feasible, especially during the school year.
In cases like that – and where the parties still wish to share custody – we can zoom out from a 14-day spread, and instead pose things in terms of a full year, a 365-day calendar. We can use this as a framework to better and more feasibly maximize each parent’s time with the child. With this framework, we could craft the schedule to give, for instance, the mother more time with the children during the school year, and then make up additional time for the father on long weekends, school breaks, holidays, and summer vacation.
In a settlement I just worked out with a couple, we did a schedule that maintained shared custody, simply by counting out the number of days the mother would get extra during the school year and then making up all of those days for the father on the breaks and summer vacation.
So, that’s one way that it could be done. But ultimately, at the end of the day, if you walk through every theoretical permutation of access and the parties continue to insist they don’t want any of those options, then the only other choice is to go to trial.
What Components of Co-Parenting Should Parents Agree on When it Comes to a Custody Arrangement?
There are some guideline examples often cited as things that should be agreed on when it comes to custody arrangements. This includes things that experts believe should be consistent between households, like vaccines or healthcare or religion.
However, at the end of the day, as an attorney I can’t really dictate to my client or the parties what I think they should agree on in regarding their own child.
In theory, though, parents should strive to reach an agreement on all the major issues in a child’s life, whether it be religion or healthcare or choice of school or vaccines. The agreement negotiation process, and even the Court litigation process, is there to help parents make those decisions when they disagree.
Quite obviously, if two parents are able to reach agreement on an issue—especially on major issues—then they don’t really need lawyers. They don’t need the Court, other than to perhaps just sign off on an Order that incorporates the agreement they have already reached.
I’ve had cases like that. I’ve had parties come to me at the initial consultation and say, “Guess what? We largely don’t need you because we’ve discussed it amongst ourselves. We’ve reached an agreement on all the basic terms, and here it is.” Then they write up the basic terms, and then it’s just a matter of drafting the formal Stipulation, filing the Petition in Court, and then going before the Judge. At that point, all I have to say is, “Judge, good news. We settled the case already. Here is the Stipulation. We just need an Order.”
Of course, that’s not the vast majority of cases that I handle. About 98 to 99% of cases that I handle, the parties are not able to reach agreements on certain issues, and we have to do at least some sort of mediation or negotiation process, and then ultimately Court litigation.
I have seen lately there is quite a bit of disagreement between co-parents with respect to COVID vaccines. This has become a sort of “hot-button issue” in 2022, so I’d like to say a little bit more about it here.
While it might be different in other states (such as Florida), in New York, there’s strong public policy supporting the vaccination of children and adults. As a parent, if you object to the vaccine but your co-parent wants the children vaccinated, you have to face the prospect of going before a Court that is ultimately going to base their determination on science, which will affect the outcome.
And while I might have my personal views on the issue, that doesn’t affect how I represent a particular client. If I have a client that objects to the vaccine, I’m not going to bring my personal beliefs into it. Instead, the party objecting to the COVID vaccine will need to come forth with the actual medical proof—preferably from a licensed medical doctor in the state of New York that would ultimately be willing to testify to the Court that they do not recommend the vaccine for children.
Of course, one would probably be hard-pressed to find such a doctor in New York, and I would venture a guess the other side would be able to find far more doctors who would testify or submit documentary evidence that the vaccine is recommended for children.
At the end of the day, though, this is a decision for the Judge to make, and you have the right to gather whatever evidence you can and present it to the Judge.
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