“Many divorcing parents are aware of how stressful change can be for their children, and they do all that is in their power to contain it. Other parents seem oblivious to the price they ask their children to pay.” Hon. Anne Kass, District Court Judge, 2nd Judicial District, New Mexico. I could not agree more with Judge Kass’s wise observation.
In Michigan, the award of joint legal custody is the norm. That is, in the absence of a parent suffering some physical or mental disability rendering him/her incapable of making sound parenting decisions, both parents will be granted the right to participate and have a voice in the major decisions in child rearing – whether it be religious training, type of medical care, or education. Hoping to clarify how joint legal custody works and to reduce the potential for conflict, many family law attorneys will draft “joint legal custody” language into a divorce judgment, which describes the good will that the parties supposedly intend to share in the co-parenting of the children after the divorce is finalized.
However, I believe this is insufficient to avoid further legal battles between divorced parents. Many cases end up back before the family court judge because parents disagree about a variety of fundamental issues that will have a dramatic effect on the children. This can range from whether or not to vaccinate (see my July 19, 2015 post), whether to permit a child to get ears pierced, traditional vs. home schooling, or more commonly, whether to change schools or school districts, whether to permit a child to engage in an “extreme” sport activity, and a myriad of other battlegrounds divorced parents enter. When joint legal custodians cannot decide, the courts must call the shots, with the judge determining what is in the child’s best interests. And, while I have high regard for our family law judges, to a person I am certain they will agree that they are not King Solomons and that parents should know what is best for their children, not judges who are essentially strangers to the child.
I think family law attorneys do their clients a disservice by not having a frank discussion about the value of putting in place a non-litigation means of resolving future parenting disputes. For instance, I am currently mediating a divorce for a young couple with an eight-year old son. It is very clear that these parents are going to live divergent lifestyles and will likely have disagreements over what is best for their little boy in the years to come. The parents have wisely agreed to select a therapist with whom the parents will consult when disputes arise. The agreement provides that the parents will abide by the recommendations of the therapist rather than file a motion and engage in costly litigation. (By “costly” I mean not just money but the emotional toll to the children.)
Of course, the therapist is also not King Solomon! But, at least an agreement to keep disputes out of court will help nurture stability for the children.