Splitting Custody? Advice from an Attorney


Custody is the spark that ignites the fire in all parental divorce negotiations. It’s an infamous topic, but it is the single most crucial issue when you’re getting divorced. Custody determines what happens to your children, what decisions are made for them by whom, where they will be staying, and who will be supervising them. Sara Corcoran, managing attorney of Corcoran  Family Law group in Bergen County, New Jersey, knows that custody can be overwhelming. Sara’s practice is devoted solely to family law. She represents clients on all matters involving divorce and custody. Sara and her group do it all from parenting time, spousal support, child support, domestic violence, relocation issues, and even grandparent visitation. Sara’s goal is to get her clients to the finish line as cost-effectively and with as much of their sanity preserved as possible.

Read on to learn more about parental custody from an attorney’s perspective. 

Two-Fold Custody: Legal Custody and Physical Custody 

Custody is twofold in New Jersey, meaning that there is legal custody and 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 significant rights that the courts take very seriously.

Legal custody pertains to decision-making concerning your child. These are significant decisions that concern school, welfare, safety, and health. 

In Sara’s experience, courts are unwilling to give one parent sole legal custody unless extreme circumstances exist. Cases such as this are criminal issues relating to the interaction between the parent and the child, substance abuse issues, or any sort of inappropriate contact with children or any child. In some instances, although it’s rare, the courts based on the party’s inability to agree on anything will result in one person getting sole legal custody. Sara would never recommend that people make issues to substantiate their position to achieve sole legal custody. In her view, there is a presumption that the party should share joint legal custody, absent these extreme circumstances. Joint custody starts both parties off on equal footing, and it puts them in a suitable position to then have further conversations about where their kids will go and when. This means that both parties should have joint legal custody in decision-making. 

Physical custody pertains to parenting time. 

Both parents share the responsibility of raising their child, with equal or close to equal time with each child. Although it’s called physical custody, no one parent claims complete physical custody of the child. There is no such thing as one parent as a primary residence and one parent as an alternate residence. What does that do? That puts everybody on similar footing. Not equal, but certainly similar.  

Arranging Parenting Time

Sara thinks it’s important to take the sting out of a lot of custody negotiations so that people can make informed decisions rationally.

Jessica and her ex have equal 2-2-3 50/50 custody. Her ex gets Monday nights and Tuesday nights, she gets Wednesday nights and Thursday nights, and then they share every other weekend. For Jessica, this was an amicable set-up and an ideal schedule for her kids. 

Sara always encourages clients to think about it because you can potentially end up spending so much money for such a small increment of more parenting time, which may really not add up to that much. The good news is custody and parenting time are always subject to modification, based on the best interests of the children. That means you can come back to court and make a case for why your custody arrangement isn’t working out. The arrangement for custody is always subject to modification.

Unlike Jessica, T.H. didn’t have 2-2-3 50/50 custody arrangement. Instead, her ex-husband had Wednesdays and every other weekend. She didn’t want the back and forth so much, because she felt packing their bag every other day was too much for her kids. She had three kids under the age of eight. As they got older, they didn’t go back to court, but, eventually, the kids started deciding where they wanted to be. T.H. was the primary residence and she was also in the town where their friends lived. She likes to think they only wanted to be with her, but the truth of the matter was it was easier for her kids to get to where they wanted to go rather than when they were at their dad’s house. Then things change and kids grow up and they evolve.

In T.H.’s divorce, she was dragged into having custody experts because of one additional day that she was not going to give. She had some bitter feelings that she was bringing into court which prolonged the process and made them go back and forth with the schedule. T.H recommends to avoid going down that road of having strangers decide who the preferred parent is and making decisions about where the kids go and on what day. How the hell do they know? It’s very upsetting to have to endure that both from an emotional and financial standpoint.

Sara has seen similar situations to T.H’s in which everyone has important reasons for why a schedule works for them or doesn’t work for them. For Sara, it’s important to not judge a parent for believing that a particular schedule is going to be best for their child. 

What if you can’t come to a parenting time agreement? 

If you can’t agree on custody and parenting time, 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. You’ll have a case management conference, which is the first event in court when you’ve begun the divorce process. They will send you to custody and parenting time mediation, which is a free service offered by the courts. You will go and meet with a mediator without attorneys, and you will 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. But if you still can’t come to an agreement in the mediation, eventually the court will become inmpatient and will assign custody experts to resolve it. 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. Sara says this “more time” becomes a double-edged sword because you’re forfeiting your beliefs about what is best for your children to the court, who will bring in outsider officials to evaluate and make a decision on your situation. 

What if your spouse isn’t holding up to the rules of the agreement? 

The court rules provide specific remedies by enforcing the agreement like sanctions and counsel fees. When it pertains to the child’s safety, Sara would recommend filing an enforcement application with the court. If they’re withholding parenting time, that can be a crime. Withholding parenting time would be the second most important instance where an enforcement application would be appropriate. This does not imply habitual lateness. In this case, you would need a parent coordinator, not a judge. Withholding parenting time becomes a crime when your spouse restricts your time with your kids. If your spouse is failing to pay child support, you, as the recipient, have the right to receive child support through probation. Your lawyer will not need your spouse’s consent and get child support under the statute and the court rule.

Don’t Underestimate the Value of Alone Time.

All seriousness aside, one of the things Jessica feels that parents fighting for more than 50% custody should know is that they’re going to cherish the time off from their kids in about six months after the divorce is settled. People don’t realize that one of the upsides of divorce is having time to yourself. You can sleep in, you can go out with your friends, and you can get your life back. No more waking up in the middle of the night to wet beds and vomit on the floor. Many parents fighting for custody don’t see the value of downtime because they are blind with rage. They are channeling all their resentment towards their spouse into the custody arrangement. It becomes a battle of screwing the other person over.  

Remove Resentment from Custody

No one is ever happy after spending a ton of money on counsel fees and getting involved in protracted litigation. When you’re angry towards your spouse, you’re leading with the wrong intentions regarding decision-making. Custody can be a more easily negotiable and less painful situation when people act reasonably by putting their resentment aside. Just focus on your kids and how you want them, as well as yourself, to feel post-divorce. Make sure you keep your eye on the end goal. Do the best you can to communicate, interview your lawyers, and always take the high road. Sara tells her clients that their reasonableness will dictate the outcome of their divorce. Remember to act maturely and respectfully. You can’t control, what someone else is going to do, but you can control how you react.

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