If decision making responsibilities of your children are not in issue, we need only address the issue of allocation of parenting time. If you anticipate you and your spouse can work out allocation of parenting time, I suggest your agreement merely provides that allocation of parenting time be “reasonable.” Such a provision is desirable because it is not rigid. If you anticipate allocation of parenting time may become a problem, we recommend allocation of parenting time be specified to take place on certain days and during certain hours.
If you and your spouse cannot agree who will have decision making responsibilities, the court will order mediation of the decision making responsibilities issue (except if there has been an order of protection and in certain other circumstances). This office has experienced good results in having decision making responsibilities disputes resolved through mediation. The resolution of decision making responsibilities and allocation of parenting time disputes by mediation is also substantially less expensive than a contested trial. If mediation does not resolve the decision making responsibilities issue, the decision making responsibilities proceedings are contested and will be decided by the judge.
Section 602.1 addresses joint decision making responsibilities. The term “joint decision making responsibilities” can mean many things. The concept of joint decision making responsibilities came into vogue in the mid-seventies. As the law goes, that makes joint decision making responsibilities a relatively new concept. Before the introduction of joint decision making responsibilities, one parent was given the “sole care, decision making responsibilities, control and education” of the child, and the other parent would be granted allocation of parenting time rights. This type of arrangement gave the custodial parent the right to make all decisions affecting the child, as well as having the decision making responsibilities of the child, subject only to allocation of parenting time rights. Legally, “joint decision making responsibilities” describes an arrangement whereby both parents are involved in the significant decisions to be made regarding the child, such as education, religion, extraordinary medical care, etc. Many people incorrectly believe joint custody means parenting time must be divided equally. It is not necessary for a joint parenting agreement to divide parenting time equally, but only that the major decisions must be made jointly.
Joint physical decision making responsibilities works best if you and your spouse live reasonably close to each other [within the same school district], can cooperate and communicate decently regarding the major decisions affecting the children, and where each parent spends substantial time with the children. Joint decision making responsibilities does not usually work when there has been domestic violence or when the parties cannot cooperate well as far as the children are concerned. If you and your spouse agree on joint decision making responsibilities, in the sense that the major decisions affecting the children are to be made jointly, the agreement should provide for a person who is to mediate any disputes regarding the major decisions affecting your children.
The court does not have a crystal ball to aid it in determining which parent will make the better custodian. The court generally decides decision making responsibilities based on which parent has been the primary care-taking parent and the more emotionally supportive parent.
Contested child decision making responsibilities proceedings are very costly. In fact most couples cannot afford decision making responsibilities litigation and must borrow a substantial sum of money to pay for the child decision making responsibilities dispute. Because of the significance of the child decision making responsibilities issue, no stone can be left unturned. Virtually all child decision making responsibilities disputes require psychological evaluations and testimony by mental health professionals. Frequently there is also input made by physicians, teachers, friends, neighbors and relatives. The adequate preparation of all of these facets of the divorce is time consuming. There is also the payment for the services of the various professional people who may be involved in the divorce, like psychologists.
Contact Franks & Rechenberg, P.C., where we specialize in helping you defend your case.