Joint legal custody is extremely common in New Jersey. But that doesn't mean it's appropriate in every case.
Joint legal custody generally means that both parents share responsibility for major decisions affecting their child's life, including important decisions involving health, education, and general welfare. It does not necessarily mean that the parents have equal parenting time or that the child spends exactly half of the time living with each parent.
The problem arises when two parents are given joint decision-making responsibility but are completely incapable of making decisions together.
Joint Legal Custody Requires Cooperation
New Jersey courts have recognized for decades that joint custody requires parents to demonstrate at least the potential to cooperate when it comes to raising their children. The parents don't have to like each other. They don't have to be friends. They don't even have to have a particularly pleasant relationship.
But they do need to be able to put their personal conflict aside long enough to make important decisions for their child. That's a significant distinction.
I've handled cases where one parent was so angry with the other that virtually every decision became another battle. Medical care became a fight. School became a fight. Activities became a fight. Something that should have required a five-minute conversation turned into another disagreement between two people who could no longer separate their feelings about each other from their responsibilities as parents.
In a situation like that, simply calling the arrangement "joint legal custody" doesn't solve the problem.
Joint Custody Is More Than an Honorary Title
A New Jersey court once described joint legal custody as being more than simply an "honorary title." I think that's exactly right.
Having joint legal custody comes with an actual responsibility to participate constructively in decisions involving your child. If parents cannot communicate or cooperate sufficiently to make those decisions, the court may have to become involved.
Depending upon the circumstances, that could mean requiring co-parenting counseling, resolving a particular disagreement, giving one parent decision-making authority over a particular issue, or reconsidering whether the existing custody arrangement continues to serve the child's best interests.
The answer depends on the facts of the particular family.
What Happens When Parents Can't Agree?
Some disagreement is completely normal. Divorced parents aren't expected to agree about everything simply because they share joint legal custody. The problem is when disagreement becomes dysfunction.
Suppose one parent wants a child to receive a particular medical treatment and the other refuses. Or the parents cannot agree about an important educational decision. Or virtually every significant issue turns into a stalemate because one or both parents refuse to communicate productively. At some point, somebody has to be able to make a decision.
New Jersey courts focus on the best interests of the child, not on preserving a particular custody label at all costs. One of the statutory factors courts consider is specifically the parents' ability to agree, communicate, and cooperate in matters relating to their child. That factor exists for a reason.
High Conflict Doesn't Automatically Mean Sole Custody
There is an important qualification here. Parents fighting with each other does not automatically mean that one parent should receive sole legal custody.
Divorce itself creates conflict. Parents can disagree strongly and still be perfectly capable of making appropriate decisions for their children. New Jersey's public policy also favors children maintaining frequent and continuing contact with both parents and encourages parents to share the rights and responsibilities of raising their children.
The real question is whether the parents' inability to cooperate is interfering with important decisions or harming the child's welfare. If it isn't, the court may have little reason to change the arrangement. If it is, then the court has the authority to consider what custody structure actually works for that child and that family.
Custody Should Be About What Actually Works
I've never liked treating joint legal custody as something that should simply be inserted into every custody agreement without considering whether the parents can actually make it work. The label isn't what matters. The child is.
If two parents can put their differences aside, communicate about important issues, and make reasonable decisions together, joint legal custody can work extremely well. If they can't, pretending that they can doesn't accomplish anything.
A custody arrangement should give a child stability and allow important decisions to be made in that child's best interests. Sometimes that means joint legal custody. Sometimes it may require a different arrangement.
If you're dealing with custody or parenting-time issues during a New Jersey divorce, my free Divorce Smarter Course explains the process in straightforward terms so you can better understand the decisions you'll face and what they may mean for your family.
Until next time,
Steve