When a family splits up, it is a difficult time for all involved. The children are not readily equipped to deal with their new family dynamic, and neither are the parents. When you have spent years raising a family together, in good times and bad, how do you face those challenges once you are no longer a family? Many of my clients, who are otherwise good and caring parents, have described it as the most difficult challenge they’ve ever faced.
Like any new challenge, the first thing you need to know is what you are up against. Believe it or not, whether your split from your partner is acrimonious to the point of no longer communicating, or whether you are splitting up more or less amicably, the challenges are pretty much of the same type. Co-parenting in different households still requires managing the day-to-day routine and the big picture decision-making. But now, it needs to be in two homes instead of one.
Who will be the kids’ pediatrician?
Is that planned ballet class this summer still a possibility?
Should we change schools, now that the kids are living fifteen miles away from the current school?
Where will the kids attend church if the parents no longer agree on religious values?
Decisions that were not really easy under one roof become twice as complicated when they are made under two roofs, and exponentially more complicated when the parents no longer get along. However, the rules are pretty much the same: figuring out how the big decisions get made, and applying those decisions to the kids’ day-to-day routine.
This is all part of the decision on who has custody of the child.
The term “child custody” is a bit misleading. It sounds like it means “who gets the child” in a physical sense, but except in extreme cases, both parents do. For our purposes, what it really means is “who gets to make the decisions.” Described in legal terms, that role is described as the “primary domiciliary parent,” or “PDP.” Generally, the court is supposed to designate a PDP, so that the parties are not running to court every time there is a conflict because Junior’s chess club and his soccer practice get scheduled on the same day. If there is no PDP, when the parents cannot agree, the court would have to decide the question. Obviously, this can be immensely impractical. It may take weeks or months before you can get in front of a judge to make your case, and by then, the question may well be moot because chess club or soccer is over for the year. So in most cases, the court will assign one parent as PDP, and their word on soccer practice versus chess club is, in most cases, final.
The rules state that only one parent can be the PDP. So while “custody” in the physical sense is usually shared, the role of decision maker, for obvious reasons, is not: what would be the point of naming a PDP if he or she must share authority with the other parent? It puts parents who cannot agree back at square one, where they have to ask the court to decide for them.
But that doesn’t mean the court cannot get creative when the circumstances demand it. For example, in last year’s case Coody v. Coody, the parties “hated each other” (the court’s words) to the point that one parent would oppose some activity for their children simply because they knew the other party wanted it. Because Mom signed Junior up for sports, Dad would refuse to sign the paperwork so that Mom had to run to court to get a court order. And because Dad signed Junior up for cooking classes… well, you get the picture. After a while, the court realized it was doing the parenting. Even if one parent was the PDP, the practical realities of implementing that parent’s decisions made co-parenting impossible. These parents simply could not put their personality conflicts aside long enough to co-parent.
Since having the court act as the decision making parent was clearly not in the best interest of the children, and since the oppositional behavior was coming from both parents, the court fashioned a rather creative solution: it gave final authority over some decisions to one parent, and authority over other decisions to the other parent. While this may appear (and indeed was argued on appeal) to be an impermissible split of PDP “decision maker” status, the appellate court found this decision minimized conflict, promoted essential communication, and was therefore in the best interests of the children.
The trial court felt this decision would diffuse the animosity between the parents and improve the communication between the parents, as well as the communication between parents and children. In particular, the trial court’s realignment of parental authority tamped down one area of dispute, promoted discussion between the parents, and caused the children, who were now older and more active in extracurricular activities, to better communicate with their father. The appellate court agreed that this was not only the best solution to keep the parents from running to court for every dispute, it was well within the court’s power to allocate legal authority between the parents. It was not an impermissible split of authority over individual decisions; rather, it was a permissible allocation of complete authority over individual decisions to one parent or the other.
Some may cynically call this “bending the rules.” The way I see it, it was a creative solution to an intractable problem that had persisted for years, and that the court knew would continue as long as the kids were under their parents’ authority. Since this case only came out last year, time will have to tell if this decision will bring about an end to the otherwise endless battle between these two people who simply cannot get along. I suspect it will. In fact, I think if the parents’ attorneys had hit on this idea at the outset, it would have saved this family years of unnecessary conflict, not to mention great expense.
This just shows how creative thinking that challenges the way everyone thinks the rules should work can change everything. The Coody court only came up with this novel interpretation of the rules after years of exhausting every other idea without success. If your lawyer has a keen idea of who you are, what your family needs, and what the other side will entertain, and if he has a quick and flexible mind that can come up with a creative solution, how much is it worth to you? Is it worth saving yourself tens of thousands of dollars, and years of frustrating heartbreak in court?
There are no magical formulas here. Some solutions elude families with the best intentions, and the most forward-thinking lawyers. But when your lawyer has worked with families for decades and still has an open mind, you are probably going to have a much easier time than if you hire a lawyer who is simply interested in collecting a fee.
If you are not happy with the way things are going in your custody arrangement and you are ready to make a change, consider getting a fresh perspective. Schedule a free initial consultation with an experienced family law attorney today.