As divorce lawyers, when we break down the parameters of "physical custody" and "legal custody," we tend to proceed on autopilot.
Meaning, we immediately begin to determine what could be a workable "regular schedule" (which parent is with a child, when, and for how long, in a 14-night cycle, i.e., 7-7, 8-6, 9-5) and a "holiday/vacation schedule," i.e., who has this holiday versus that holiday in "even-numbered" vs. "odd-numbered" years.
We then get to work on how "major decisions" affecting a child's welfare will be made, e.g., sole decision-making, joint decision-making, joint decision-making with a parenting coordinator as a "tiebreaker" of sorts, etc.
What I suspect we do not spend enough time considering—myself included—is what it must feel like for a parent who once began and/or ended the day with his/her child in the home to now be thrust into a new world order where that same parent begins and ends various days in that same home (or a new home), but without his/her child present because it is not his/her "parenting day" in the "regular schedule." Parents who have entered into joint custody arrangements (the focus of this article) are compelled to adapt to a new normal that involves periods of physical absence.
Relatedly, there is the new world order for a divorced (or divorcing) parent where he/she is no longer involved in each and every decision made in a child's day-to-day life. Indeed, the "routine daily decisions" are typically no longer made by the parent who is not with a child on a particular day in the "regular schedule." These same parents who have entered into joint custody arrangements must also adapt to a new normal that involves periods of what I will call routine decisional absence.
That brings us to the recent decision of K.S. v. J.S., 2024 NY Slip Op 51418(U) (Sup. Ct., Putnam County) (Grossman, J.). In K.S., the parties placed an oral stipulation on the record regarding custody of their two young children in open court; the transcript of the proceeding was "so-ordered" by the court.
Part of the on-the-record recitation of the parties' custody stipulation were the following statements from the mother's counsel:
The parties in this matter will have joint legal custody of the two minor children … The parties are going to utilize John Pappalardo as a parent coordinator solely for major decisions of health, education and religion …
The father brought an application claiming that the mother took "unilateral action" with respect to the children that was contrary to his rights as a parent with "joint legal custody." More specifically, the father claimed that "major decisions" extend beyond "health, education and religion."
In contrast, the mother's position was as follows:
The Parties agreed that the Parent Coordinator would be used to resolve Major Decisions regarding health, education and religion on which the Parties could not agree and intentionally limited the scope of those decisions to those three (3) specific categories. Defendant's argument that entire unidentified swathes of Major Decisions could exist (and that they are without any mechanism for resolution) defies logic.
The decision includes a thorough recitation of statutes in various other states that define "joint legal custody," and concludes that "New York courts, as Defendant aptly observes, often interpret joint legal custody more broadly, not only by taking an expansive view of what falls under the rubric of 'education' or 'health,' but also by including, for example, such things as extracurricular activities and summer camp."
Accordingly, the court "adhere[d] to its conclusion that by this language the parties agreed to 'joint legal custody' without qualification, i.e., without delimitation (other than that inherent in the legal term itself) of the areas of the children's life to which it applies; and further, that their agreement to use a PC [parenting coordinator] 'solely for major decisions of health, education and religion' is naturally read not as a limitation of the issues subject to consultation and mutual decision-making, but as carving out a subset of those issues for reference to the PC when the parents reach an impasse."
In short: (1) New York courts interpret the words "joint legal custody" broadly, and (2) once again, be wary of entering into oral stipulations on the record, notwithstanding that they are permitted under CPLR 2104.
And now, to the specific actions complained of, and there is much to be learned from reading these aspects of the decision:
The choice of an extended summer camp or program would seem to qualify as a major decision, inasmuch as it would have a significant bearing on the child's well-being and education. Here, however, Plaintiff merely enrolled L. at L.'s camp for four days during her own parenting time. As a short-term recreational activity confined to Plaintiff's time with the child, that choice has none of the earmarks of a major decision and was entrusted exclusively to the Plaintiff.
Similarly, the choice of an extended day care arrangement would seem to qualify as a major decision. In this day and age most day care facilities have and indeed tout educational programs even for two-year olds, as witness here the fact that what Plaintiff calls a day care presents itself as a 'nursey school & kindergarten.' However, the parties acknowledged in proceedings before this Court that Plaintiff was faced with a need to take prompt action to make arrangements for L. and Lu. upon her recent move, just before the start of the school year, back to New York. Under the circumstances, Plaintiff cannot be faulted for enrolling Lu. after providing Defendant with information concerning the alternatives.
Taking L. on a new-school visit to get acquainted with the environment, filling out school forms, and bringing him to the doctor for a regularly scheduled physical exam are not 'decisions,' never mind major decisions. These are all purely executive measures entrusted to the discretion of each parent on his or her own time with the children.
Plaintiff is free to choose her own Catholic parish, to register the children in her parish, and to take the children to Mass with her when she has them on Sunday. Defendant is likewise free to choose his own Catholic parish, to register the children in his parish, and to take the children to Mass with him when he has them on Sunday. Registration is a purely administrative matter with no impact on the children's religious upbringing …
Where does this leave us? I'm going to put it this way: if a parent is insisting on being present as a means to control or otherwise invade the other parent's designated time with a child rather than considering the child's best interests, the divorce lawyer should instruct that parent to stand down. We cannot tell from the decision in K.S. whether or not the foregoing is applicable or not; it may well not have been the case.
In either case, the K.S. decision reminds us that when joint legal custody takes effect, the reality of routine decisional absence comes to the fore, and the fact is that a child of a two-parent home will now have a home—and all the routine decisions, routine activities, "administrative" matters, and "executive measures" that come with it—with one parent, and an entirely different and distinct home with the other parent. Educating our clients on the need to adapt to routine decisional absence may just be the ticket to ensuring that a newly developed joint custodial arrangement starts off on the right foot.
"What It Means to Have ‘Joint Legal Custody'," by Alan R. Feigenbaum, was published in the New York Law Journal on November 1, 2024.
Reprinted with permission from the November 1, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
