For anyone divorcing with kids, custody and parenting are critical topics. It’s important to put the best interest of the kids first and manage expectations.
- The most important issues to work out regarding children are: what happens to them, who has them, who’s making the decisions for them, and who’s supervising them
- Physical and legal custody are not the same thing
- If you cannot agree on custody and parenting time, the court may assign custody experts to evaluate your parenting
OUR GUEST – SARA CORCORAN, CORCORAN FAMILY LAW
Welcome to another episode of the exEXPERTS DIVORCE etc… Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re Jessica and T.H.
TH: Today’s podcast, we have Sara Corcoran from Corcoran Family Law based in New Jersey. We’re going to talk about custody and then we’re going to talk about parenting rights. This is a sensitive topic and Sarah is going to take us through it very gently, and very straightforward. Welcome to the podcast.
Sara: Thanks for having me, ladies. I appreciate it. Happy to be here.
Jessica: Thanks for taking the time. Like T.H. said, custody, talk about the spark in all of the parental divorce negotiations.
Sara: Yeah, exactly. It is the single most important issue when you’re getting divorced, what happens to your children, what decisions are made for them by whom, where they will be staying, who will be supervising them. The single most important issue when you’re getting divorced, or when you have children with another person, in either case.
Custody is twofold in the state of New Jersey. We have legal custody, and we have physical custody. Those are two completely different things. Your ability to parent your child free of interference is protected by the United States Constitution, the First Amendment, the 9th and the 14th. These are serious and significant rights that the courts take very seriously. The courts sit in a role, it’s called parens patriae, which is a Latin term for protector of the children. What we first always want to address is legal custody, that’s decision making with respect to your child. Major decisions, I’m not talking about what they’re having for dinner, or what kind of play dates they’re having. I mean, certainly, if they have a gluten intolerance or sensitivity, then we often deal with those issues. It may come up frequently, and it’s important to address them. But first, it’s really this global agreement, hopefully, with respect to legal custody- big decisions, school, welfare, safety, health, and those sorts of things. In my experience, courts are unwilling to give one parent sole legal custody, short of there being some extreme circumstance. Some of those would be if there are criminal issues relating to the interaction between the parent and the child, perhaps substance abuse issues, certainly any sort of inappropriate contact with children or any child, so that would be an instance. In some cases, although it’s rare, the courts based on the party’s inability to agree on anything results in one person getting sole legal custody. Now, look, I would never recommend people make issues to then attempt to substantiate their position to achieve sole legal custody. It’s so infrequently done, and only in such extreme, extreme cases. My recommendation is that’s an easy one to check off. There’s a presumption in my view that the party should share joint legal custody, absent these extreme circumstances. I think that that starts everybody sort of on equal footing, and it puts them in a fair position to then have further conversations about where the kids are going to go and when.
Jessica: You’re saying they should have joint legal custody in terms of the decision making?
Jessica: Then are you have the mindset that you’re still okay with one parent having sole physical custody?
Sara: No, absolutely not. That doesn’t happen either. You hear in the media someone won custody, someone beat the other one in custody. That’s not how it works, and that’s not how it works in New Jersey.
If people approach it knowing that’s not how it works, and that’s not the way it is, I think people would save a lot of money and heartache and preserve their children’s innocence for a lot longer. They used to call it like visitation. No, we don’t call it visiting, we call it parenting time. We don’t say you have physical custody of the child. No. One parent is the parent of primary residence, and one parent is the parent of alternate residence. What does that do? That puts everybody on similar footing. Not equal, but certainly similar and it doesn’t have this negative connotation to it. I think it’s important to take like the sting as you said, out of a lot of this so that people can make informed decisions rationally.
Jessica: Right. My ex and I have equal 50/50 custody, which was a very amicable divorce. I think it’s so important for the kids anyway, but really, he gets Monday nights and Tuesday nights, I get Wednesday nights and Thursday nights, and then we share every other weekend. It was very important to me at the time of my divorce that I be the primary care parent. I don’t–
Sara: You’re not alone. You’re not alone.
Jessica: But I had to have that. I don’t think he cared because again, everything else was shared 50/50, but that was definitely a little sticking point for me that I needed to be the primary caregiver.
Sara: Look, I love a 2-2-3. When people are amicable, a 50/50 2-2-3, it’s the way to go. I’ve got to tell you–
Jessica: That’s what I have, a 50/50 2-2-3.
Sara: See? There you go. A lot of judges in Bergen County in particular, are starting at 50/50. Even when somebody is jumping and screaming at me, ‘I’m a stay at home mom’, I’m saying, look, this is what you’re up against because we have these constitutional protections. Often, unfortunately, you have a case, and you have super dad. You’re getting divorced, super dad or super mom, and I’m suddenly taking the kids to the doctor.
All of those things that happened when you were married and who cared for the kids are going to be very important, should you have to have an evaluation. But when you’re getting divorced, things change, so some judges start at 50/50. I always encourage clients to think about it, really think about it, because you could potentially end up spending so much money for such a small, incrementally more time, which may really not add up to that much.
It’s the single most important decision you’re going to make in any case. It’s the most important decision, and there are a lot of ramifications. The good news is custody and parenting time are always subject to modification, always, based on the best interests of the children. That means you can come back to court and say, ‘Hey, look, this isn’t working. My daughter is struggling in school, because dad isn’t doing the homework. He’s with his girlfriend, and they put her in a room and she’s not doing homework.’ I’m going to be getting an expert to corroborate what I’m saying, because it’s clear, the teachers have indicated on dad’s nights it’s a problem. It’s always subject to modification, which is good. Thank god.
T.H.: I didn’t have 2-2-3 50/50. He had Wednesdays and every other weekend. I didn’t want the back and forth so much, because I felt them packing their bag every other day was just a lot. I had three kids under eight, I don’t know, they wouldn’t know where they were waking up the next day. Or maybe they would, and that was just me putting that on them. As they got older, we didn’t go back to court, but then the kids started deciding where they wanted to be.
I was the primary residence and I was also in our town. I like to think they only wanted to be with me, but the truth of the matter is I was in town where their friends were. It was easier to get to where they wanted to go than going to their dad’s house. Then things change and kids grow up and they evolve. They drive and then who’s going to give me a car? Then there are other conditions of why your kids are in certain places. We just did a podcast about how to control triggers and how to manage transitions with young children. I think ultimately, you have to make the best decision for your family. In my divorce, I was dragged into having custody experts because of one additional day that I was not going to give. I was not going to give it because I said too much back and forth in terms of the schedule, and I also had some lingering feelings that I was bringing into it.
I would just say if you can avoid going down that road of having strangers decide who the preferred parent is and making decisions about where they go and on what day–they met me for half an hour. How the hell do they know? I’d be, ‘I’ll give you a lollipop after. We’ll go to Friendly’s. You can have pizza all night long, soda all you want. Let’s go and let’s be rah-rah mommy.’ It just wasn’t fair and you’re sweating bullets that you’re going to be judged in that hour for the custody of your kids.
Sara: And you are. You are being judged in that hour.
TH: It’s so upsetting. If you can avoid it, please do. Not to mention how much money, anguish and money, anguish first, then money, on this in a relatively normal situation. It was nuts.
Sara: I see similar situations to yours too, T.H., and I think everyone has important reasons for why a schedule works for them or doesn’t work for them, and you’ve enumerated a lot of them. I think it’s important to not judge why you believe as a mom or a dad why a particular schedule is going to be best for your child, but I think your takeaway is really, really poignant. If you cannot agree to custody and parenting time, the court will give you a little bit of time. You’ll have a case management conference, which is the first event in court when you’ve begun the divorce process. At that time, the court is going to ask you, have you resolved custody and parenting time? Is it an issue? If it’s an issue, they send you to custody and parenting time mediation, which is a brilliant free service offered by the courts. You go and you meet with the mediator without attorneys, and you try to work out a custody and parenting time schedule, if your attorneys haven’t been able to work it out amongst themselves first. This is in the very early stages, so this is usually the first step. If you can’t agree in custody and parenting time mediation, and you go back to the court to report that you were unable to agree, the court will give you a little bit more time. Then suddenly, the court becomes very impatient, and they don’t care. The judge says, ‘Guess what? You all are retaining custody experts, or I’m going to retain my own expert, or maybe I’m also going to appoint a guardian ad litem, because I’m unsure that anybody’s protecting the child’s interests.’ Now what you’ve done is you’ve effectively divested yourself of decision making authority over your own children, despite the constitutional protections afforded to you. It’s a double edged sword because you have these beliefs. I believe them to be true, and like I said, we don’t judge them, but you have these beliefs and these ideas about what is best for your children. The court really says, ‘I don’t care, I’m going to let all of these other people figure it out. The PhDs, the psychologists, the doctors, are going to get together and render an opinion, and that opinion is going to hold a lot of weight.’
Jessica: You’re cutting off your nose to spite your face.
TH: It was brutal. The problem is that if one–my ex wanted all of that, so you’ve got to go along for the ride. You don’t have a choice. You’re being told what to do and then you just got to go.
Jessica: One of the things I was going to say that you can tell your client, Sara, especially when you have young children, and you’re fighting for more than 50% custody, and maybe part of it is like just out of animosity and the vindictiveness towards the other parent, let them know that in about six months, once things are settled, they’re going to really cherish the time off from your kids. I will say that what people don’t think about is that one of the upsides of divorce when you have little kids is the fact that half the time you have time to yourself.
TH: All by yourself.
Jessica: You can sleep in, you can go out with your friends, and you’re not drowning in diapers and having to put on their shoes. I really always felt at the beginning it was a secret that I had discovered, probably like a year after. I’m like, oh my god, I’m going to have five days now. I don’t have to get anybody dressed or deal with wetting their bed in the middle of the night or throwing up–
T.H.: Father’s day is the best day. Father’s day is the best mothers’ holiday.
Jessica: Totally. I feel people don’t value enough downtime, because they’re too caught up in being angry and resentful and trying to, ‘I’m going to screw you’, but really, you’re screwing yourself. And when they end up getting 50% custody, one of the things I always told myself, true or not, was I don’t have to worry about the mom guilt of not having my kids because that’s what the–I mean, we never actually went to court and we worked it out ourselves, but it was like, this is what the divorce agreement is. I don’t have to walk around with mom guilt about the fact that the kids are with their dad, but I do have a couple of questions for you. I was talking to someone recently who was telling me that, whatever their custody arrangement is, maybe it is 50/50, but it was like–oh, yeah, no, I know who it was I was talking to, and I do think they have 50/50. She was irate that he on his time had gone out of town and had not told her and had the kid stay with his mother, who by the way is perfectly capable of watching the kid. But I was curious as to how does that work? If my ex was going away don’t fucking send my kid off with your parents. Bring them back to me. I should at least have the right of first refusal to watch the kids and vice versa. How do people handle that? How do you handle that?
Sara: I think you absolutely have to provide for that in your agreement by way of a right of first refusal, just like you said. Usually, what I say is if it’s longer than four hours, you have to call me up first and ask me if I want my client to watch the children. Otherwise, you can do whatever you want within those four hours, but if it’s beyond four hours, you have to let me know. Look, agreements can’t provide for everything, but I think that should certainly be on your checklist. Certainly on your checklist.
Jessica: That’s a good point. That should be on the checklist. Another thing I’m wondering about is you were saying before, custody agreements can always go back and be revisited, which is fine. But I feel depending on how old your kids are, even if you’re not dealing with custody experts, you’re not getting around the fact that your kids now know you are taking their other parent to court and fighting with them over the kids. There’s a very likely chance that that other parent is trash talking you behind your back or saying passive aggressive things that are getting into the kids’ heads. I wonder sometimes, when you have situations where the ex isn’t holding up to everything in the agreement, whether its financial obligations, whether its custody obligations, at what point do you recommend to your client that they do take it back to court knowing that it’s going to wreak such havoc and conflict for the kids?
Sara: Yeah, it’s a hard decision to make for parents in particular, after you spend so much emotional energy and time and money coming to an agreement. But certainly, the court rules provide for certain remedies, by way of enforcing the agreement like sanctions and counsel fees.
My biggest concern would be if, number one, the other parent isn’t properly caring for the child when the child is in their care.
That’s a no-brainer. In that case, when it pertains to the safety of the child, I would recommend filing an enforcement application with the court.
Number two, they’re withholding parenting time, and that can be a crime.
Perhaps not in the first instance, and I’m not talking about a 15 minute delay. You have people say, well, they’re habitually late, and this, that, and the other thing. You need a parent coordinator, you don’t need a judge. The judge is going to punt it and tell you to go to mediation anyway, or yell at your lawyers and say what are you doing here? You have to be careful, and you have to carefully consider when it is appropriate. I think withholding parenting time would be the second most important instance where an enforcement application would be appropriate, or failure to pay support. You’re relying on this money from this person to help support your children. It’s very simple. You as the recipient, whoever that is, has a right to receive it through probation if necessary. That’s not something I need the other person to agree to. I’ll get it by virtue of the statute and the court rule. I don’t need anybody’s consent. If you don’t pay me the right way, pursuant to the agreement, I’ll file an application. I’ll get counsel fees, you’ll pay through probation, and you’ll be embarrassed with your employer, so do the right thing.
Jessica: Assuming they have the money, because if they’re just like paying you less and less, and they’re like, ‘I can’t afford it. The business isn’t good right now. Pandemic. COVID. I’m not making that kind of money anymore.’ It’s like you’re going to spend more money going back to court sometimes.
Sara: Yeah, but in that case Jessica, that person should have come to you and said, ‘Look, I need a little relief. I’m in a financially precarious situation.’ This is what you hope that people will rationally address these issues without having to involve the courts or lawyers. That would be my recommendation first. Go to your spouse and say, ‘Look, I I’m struggling, I’m suffering. Here’s some of my financial information. Can we work out an agreement for a reduction?’ If you can’t, perhaps you say, ‘Let’s go to a mediator and see what they say.’ Those would be ways to deal with the financial issues, but often you have a spiteful spouse who just says, ‘I’m not paying’ and then you’ve got to hit them where it hurts.
Jessica: I feel it’s so interesting, because even us having been through it, and knowing what it’s like, a lot of times when you think about typical divorce, people will think about the lawyers who are like tigers who are out there to fight for everything. I feel the more T.H. and I talk to different attorneys about really sensitive issues like the finances and custody, more and more we’re hearing lawyers basically having a similar viewpoint as you, which is like you’ve got to relax. Maybe you’re not saying you’ve got to relax, but nobody wants to go in fighting. How are so many people fighting if the lawyers are like, ‘You’re making a mistake’?
TH: Because they’re short sighted, and they’re emotional, and that’s the problem. When you’re emotional, you think you’re smart, and you’re making mistakes all over the place. You’re leading with the wrong thing.
Sara: Yeah, I think you’re right. You guys are providing great perspective, and you have a host of resources. Hopefully, you’re educating a large segment of the population about this sort of thing, because I’m more pleased at the conclusion of a case when parties have come together in the spirit of what’s in my children’s best interest, and my entire family’s best interest. My clients are better served, I feel better, and everybody feels that the deal was more fair. As soon as people have expended tons of sums on counsel fees and have been involved in protracted litigation, no one is even remotely happy, ever. You’re out a lot of money. I realize that’s sort of counterintuitive for me to be saying, but I always lead with, ‘My goal is to get you to the finish line as cost effectively and with as much of your humanity and sanity preserved as possible.’ If that means we sometimes have to go to court–we do, I do it all the time, I do it constantly, but I would always offer the alternative. In fact, as lawyers, we’re required to pursuant to the court rules. I always recommend alternative dispute resolution.
Jessica: It’s just very refreshing I think that the people, the professionals, the industry experts that we’re vetting and talking to are giving these very rational, practical tips and advice to our community, because it really shouldn’t always have to be what we’ve seen in the movies, The War of the Roses and Kramer vs. Kramer. I guess that exists still these days, but I just love the fact that we’re really opening people’s minds to the idea it doesn’t have to be like that. It really should be a more easily negotiable situation with people acting reasonably and not getting so caught up in all of the anger and resentment if possible.
TH: But it takes two, so don’t blame yourself, because mine was four years of anguish being pulled along a path that I did not want to go down. The end result was we both wanted the divorce, so let’s just get there this way instead of going around, around, around, around for four years.
I would just say do the best you can to communicate, make sure you interview your lawyers, make sure you keep your eye on the prize, and always, always, for the women always be a lady and the men always be a gentleman, because that’s how you’re going to remember it.
Did I keep my head up high and be respectful? Of course there were weak moments, but overall, I look back at my situation, and as long and difficult as it was, I held myself as a lady, except when I’m pushed. Do the best you can and listen to the lawyers. There are so many more options, and there are no movies about mediation. There are no movies about let’s sit down and Kumbaya together. There’s nothing like that. Marriage Story was just out, oh, so upsetting. Just do what’s best for you.
Sara: Yes. I think that’s great advice, and I think you make an excellent point. You can’t control like you said, what someone else is going to do. I often begin by telling clients or potential clients that the reasonableness of the parties dictates how quickly you’re going to be divorced and how much it’s going to cost you. Unfortunately, if someone is not as reasonable as you, like you said, you’re dragged through it and you have to then be a participant in something that perhaps you don’t want to participate in. That’s a difficult pill to swallow. It’s a difficult pill to swallow.
Jessica: It is, and the custody thing as we know is the most difficult of all. Thank you so much for all of this great information. For anyone listening, if you have questions about custody, feel free to let us know. Obviously, different rules are state specific, and anything you heard today is not legal advice, it’s talk to your own lawyer, but it’s interesting things for you to think about and hopefully gives you questions to ask while you’re dealing with your own situation so that you feel more prepared and know what your options are. All of Sara’s contact information is on our website at www.exexperts.com. Thank you Sara so much for joining us today.
Sara: Thank you. Thanks for having me, ladies.
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