Successful Joint Custody in Divorce Means No Surprises

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Successful Joint Child Custody Means No SurprisesWhen you and your spouse divorce, the care of your children becomes governed by the concept of legal custody.

Child custody during and after divorce can be a minefield of confusion, emotions, and battles.

Parents can avoid this when they set aside their differences and keep their focus on the children’s needs and what’s best for them.

A New York court can make orders about the child’s custody only until the child is 18 years old. The Court gives custody based on what is best for the child. This is called the “best interest of the child.”

If there is no court order, then both parents have equal rights to physical and legal custody of the child.

Different Kinds of Child Legal Custody

Sole Legal Custody of Children

Most parents do not voluntarily relinquish the opportunity to make joint decisions concerning their children. Allocating Sole Legal Custody usually involves court intervention. A court typically needs a compelling reason to award Sole Legal Custody to one parent. Sole Legal Custody does not mean that one parent can change the parenting plan that has been approved within a divorce decree.

This blog post focuses on Joint Legal Custody (JLC).

Joint Legal Custody of Children

Joint Legal Custody (JLC) means that you and your ex-spouse must cooperate and work together to raise your children after your divorce is final. The main areas of joint decision making are issues of health, medical care, education, and religion. It also includes anything that needs a parental signature like tattooing or piercing or driving. JLC also includes other important events in your child’s life such as school vacations and trips and extra-curricular activities.

Fortunately for children, virtually all mediated and most litigated divorce agreements assign Joint Legal Custody (JLC), or Shared Parental Authority, to both parents. Children thrive when both parents are actively involved in their well-being and are well-informed about all decisions and activities in their lives.

JLC is separate from the written Parenting Plan, or Physical Custody, which pertains to where the children will reside each day.

No Surprises: Work Through Joint Legal Custody Issues in Advance

The key to a successful JLC arrangement is no surprises. If you think your ex-spouse is going to be concerned or upset about a decision, discuss it. If your child arrives at your door with a tattoo or a “buzz cut,” your surprised reaction will be directed at the child rather than your ex-spouse. That makes your child the messenger of your decision and puts her in the middle, a very difficult spot to be in.

It’s not about your privacy or autonomy when it affects your child. If you are planning a trip to Disney Land, tell your ex-spouse first. It’s not about gaining your ex-spouse’s permission. It’s about informing him or her so they are not surprised when the child bursts through the door with excitement about this information. You will help the other parent to be able to be happy and supportive for the opportunity rather than startled. Children are very good in reading parent’s faces. When they see you’re disappointed or upset, they will begin to avoid sharing information.

Things to Consider with Joint Legal Custody

In another post, I discuss The Top Dozen Parenting Issues in Divorce that I have helped clients deal with over the years.

There are many nuances to JLC beyond the major decisions that are identified within the NYS law on custody and child support. When you create the terms of your divorce, consider adding language about some or all of the following:

Minor or Day-to-Day Decisions

Generally parents leave the day-to-day decisions like meals, social activities, school preparation, and clothes to the parent of residence at the time. Of course, it’s useful if parents agree in advance regarding overall rules and behaviors.

During an emergency in which the other parent cannot be contacted right away, the available parent would make appropriate decisions and contact the other parent as soon as possible.

Handling Conflict Between the Parents

Parents put in the agreement their intention to cooperate to ensure that the children are not knowingly exposed to any conflicts that might arise between them in the future. The parents agree not to use the child to carry messages back and forth between them. Further, they do not knowingly do anything to discourage the child from loving, being with, or making contact with the other parent.

Communication Between Parents

Parents agree to inform each other of all medical conditions and appointments of the child. This is especially important when a child stays home from school. This gives the other parent the chance to express concern.

One suggestion is that the parents have a weekly call (e.g., on Sunday evenings) to confirm the schedule and logistics for the coming week. When both parents are aware of all school activities and conferences, sports, and the like, it avoids difficult scheduling and logistics snafus that are hard for children to hear.

Fortunately most schools are willing to send school emails to both parents’ email addresses. Make sure the teachers and coaches have both. Access and study the school calendar that is on every school web site.

Both parents are to be able to consult with and be informed of any information from any teacher, school authority, doctor, dentist, psychologist, or other specialist attending the child for any reason. Add events to your own calendar.

You might even set up a jointly shared Google calendar on which all events, meetings, appointments, trips and other time-based information affecting the children is located. This YouTube video on sharing a Google calendar was created by a teacher for his students to subscribe to, but the process is the same.


Counseling is an issue that often requires extra communication skills. If either parent believes that the child is having difficulty adjusting to the family transition, the parents will work together to jointly select an appropriate professional. Then both parents agree to follow the guidance of the professional. Parents generally agree not to initiate or terminate counseling or therapy for the child without the prior consent of the other.

Parents agree to promote daily contact with the child by telephone, e-mail, and/or text messaging and the like, whenever the child is with the other parent. Electronic video tools such as Skype (available on all phones, tablets and PCs) and Facetime (available on Apple devices) are an increasingly useful way to stay in touch with your children.

Documents and Traveling

In your divorce terms, include language regarding equal access to the child’s official documents, including but not limited to report cards, birth certificate, passport, and the like.

It is very useful to secure an original birth certificate if each child for both parents to have. To obtain one, search Google to find the relevant state or county Vital Records department:

According to the US Customs site, the documents required for re-entry at the time of this writing are:

“Children: U.S. citizen children ages 15 and under arriving by land or sea from a contiguous territory may present an original or copy of his or her birth certificate (issued by the Vital Records Department in the state where he or she was born), a Consular Report of Birth Abroad, or a Naturalization Certificate. If the child is a newborn and the actual birth certificate has not arrived from the Vital Records Department, we will accept a Hospital issued birth certificate.”

Children older than 15 will require a passport or similar document as outlined in that website. Parents should agree to cooperate on securing passports. Much less paperwork is required to secure a child’s passport while you are married rather than after your divorce.

In your divorce terms, include language that each parent will cooperatively write a note when requested regarding a child’s travel outside the United States. While it is not the law, many parents report being questioned when entering Canada to confirm that the other parent is aware of the child’s travel plans.

In your agreement, state that each parent agrees to advise the other of how the child may be reached if they are traveling with the child for more than a certain number of hours (usually 2-3 hours) or the child is staying overnight away from his/her scheduled residence.

Traveling anywhere in the United States is the same as traveling in New York State. Every state and most other countries honor the parenting plan in the divorce decree. The issue is not where you go, but rather that the child is returned to the other parent according to the parenting or holiday or vacation schedule.

Parents sometimes want to include travel guidelines in the agreement. Often they will request restricting travel to a country that has a US Travel Advisory posted.

Generally the child’s Social Security card can remain with one parent as it is not usually required until the child is older and starts to work. However, both parents need to know what each child’s number is, often for medical records and such.

Death of Parent

The agreement usually has reassuring language that in the event of the death of one parent, sole legal custody of the child shall transfer to the surviving parent. If for some reason this is not the parental preference, legal advice is prudent to understand the difference between another party’s guardianship rights and how that affects the surviving parent’s parental rights.

Parents often are concerned about what the other parent might say regarding future guardianship. This is less relevant in divorce because, if one parent predeceases the other, then the surviving parent’s instructions will prevail. It is less likely that both parents will die simultaneously after divorce than when married.

Grandparents’ and Extended Family’s Access Rights

Another area of concern that is usually outlined in an agreement is the commitment that each parent makes regarding staying connected with the relatives of a deceased parent. The surviving party will make sure that a strong connection remains to the grandparents and other extended family cousins, aunts and uncles and other significant adults even the new husband and wife of the deceased parent.

There are times when both parents may want to designate persons with whom they do not want the children to be connected without parental supervision.

Religious Faith and Training

Parents often emphasize in the agreement that neither parent will change the child’s current religious affiliation, impose any religious practice upon the child, or initiate or terminate religious education for him, except upon the prior consent of the other.

The parents acknowledge a respect for each other’s religious beliefs and practices, and that each respectively can attend the place of worship of his/her choice. The children can be participants and attend holiday and worship traditions of either parent, with the understanding that the agreed-upon faith of the children is understood.

Surname and Parental Designation

An important understanding is that the parents agree that the children will maintain his/her surname as decided at birth. Another is that only the parents of the child will have the designation of Mother or Father or the family terms used for that designation.

A parent who changed his/her surname because of marriage always has the right and option to return to a birth name or any other name that is legally acceptable. Language to insure this option is written into the divorce decree. While anybody can change their name at anytime, it is easier to accomplish when you are actually divorced and provide the divorce decree as evidence.

Respect, Cooperation, and Common Sense Are Key

The more willing the parents are to be respectful and cooperative after the divorce, the easier the arrangements and agreements will be to manage. More importantly, that will contribute significantly to ensuring your children have the happiest lives possible.

Child Custody Resources

NYS Domestic Relations Law 240:

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This blog and its materials have been prepared by BJ Mediation Services for informational purposes only and are not intended to be, are not, and should not be regarded as, legal or financial advice. Internet subscribers and online readers should not act upon this information without seeking professional counsel.

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