Mediation and Legal Custody

Under the New Jersey custody statute (N.J.S.A. 9:2-4), parents begin with equal rights. A court can, however, order any custody arrangement it determines to be in the best interests of the child (N.J.S.A. 9:2-4(c). Joint legal custody is the most common arrangement. Sole legal custody, which grants one parent the right to make all major decisions, is far less common. Legal custody is not necessarily related to physical custody. Sometimes parents also share physical custody equally, but often the child lives with one parent most of the time.

Mediation and Legal Custody Arrangements

Joint legal custody requires parents to work together to make decisions for their children on all major issues such as health, education, religious upbringing, and general welfare. The parent who has the child in his or her care at any given time makes day-to-day decisions that are in the child’s best interest and consults with or notifies the other parent as appropriate. While joint legal custody works well for many parents, parents in mediation have the opportunity to consider whether or not a more creative arrangement might be better for their family.

Joint legal custody can become cumbersome when parents face multiple or ongoing issues with a child’s health or education. Constant disagreements can result in many trips back to mediation, or even costly court appearances. Often in such cases, time is of the essence. There is no time for delay if, for example, a decision involves surgery or urgent medication, or if the new school year is rapidly approaching and parents disagree about placement.

For foreseeable issues, parents can delegate final decision-making authority to one parent or the other in their parenting agreement. One parent might have the final say on educational decisions, while the other has authority over decisions about religious upbringing. Final decisions on medical care can go to either parent or remain the purview of both parents. Addressing these issues as part of an overall negotiation in mediation permits maximum flexibility. Any combination that works for your family is acceptable.  If you do decide to go this route, however, be sure to be specific. The purpose of such a division is to avoid having to go back to court, but this purpose can be thwarted by an agreement that is too vague or just confusing.

Joint Legal Custody and Disagreements

Mediation is a good venue for parents who have joint custody and disagree about a major decision that impacts their child’s welfare. Each parent can present information, and, if necessary, expert witnesses. If mediation fails, you can ask the court to modify your custody order, but this is not likely to be a quick solution.  A judge will consider modification if there has been a material change in circumstances or if modification is in the best interests of the child. This might be the case, if, for example, your co-parent is ignoring medical advice and listening to conspiracy theories instead.

Disagreements About Medical Treatment

Major decisions about things like educational planning and religious upbringing can have a huge impact in a child’s life. Major decisions about medical treatment, however, can be a matter of life and death. A medical emergency may not allow time to reach a mutually acceptable solution. If the other parent has joint or even sole authority over medical decisions but is unavailable and your child’s health is in danger, you may need to make a decision while continuing to try to reach them.

Even if only one parent has legal authority over medical decisions, that parent is still required to act in the child’s best interest. If your co-parent does something like refuse life-saving or life-improving medical care, you can ask the court to intervene. Judges tend to give the most weight to the evaluations and opinions of a child’s pediatrician or a medical specialist.

Here are a few examples of conflicts over a child’s medical treatment, and how mediation might help:

To Vaccinate or Not to Vaccinate

The new vaccines for covid caused anxiety among many people, not just parents. For some people that anxiety unfortunately spread to suspicion of other vaccines, even some that have been routine for many years. If your co-parent blocks your child from getting vaccines, or if the co-parent has legal authority over this kind of medical decision and you do not, the first step is to try to resolve your difference of opinion with input from the child’s pediatrician, CDC vaccine fact sheets and other sources. If calm discussions fail to move the needle, mediation is a good next step.

As a last resort, you may need court intervention. Science is soundly behind the medical benefits of FDA approved vaccines for children. A court is therefore likely to side with the parent urging vaccination unless there is some unique circumstance at play. Courts will generally honor well-founded religious objections.  As noted in a 2019 DCP&P case, however, a court can “intervene and override the desires of parents who refuse to consent to medical treatment if ‘it is necessary to prevent harm to a child.’”

Deciding on Treatment for Transgender Kids

Divorced parents with transgendered children may disagree about the necessity or timing of gender conformity treatment. This poses a particular danger that the child could suffer severe emotional distress. With minors, only reversible treatment will generally be considered, but receiving such treatment early can be critical for the child’s emotional well-being. Once the child is emancipated, the decision to move forward will be entirely theirs.

If your co-parent is unwilling to acknowledge your child’s gender identity, education and family therapy are good first steps. If there is no resolution and your child is obviously suffering, speak to an attorney about your options. There is as of yet no case law directly on point in New Jersey, but in the 2017 case of Sacklow v. Betts, the court  approved a legal name change for a 16-year-old transgender child after applying the best interests of the child standard. The judge cited expert opinion supporting the importance to transgender youth of having their gender recognized and validated.

Assessing Multiple Surgical Options

In the unpublished 2016 case of M.T. v. D. T, a New Jersey superior court judge was asked to decide between two surgical options for a teenager who had injured his arm and elbow playing sports. The father favored one approach and the mother the other. Each of the proposed surgeons explained their preferred approaches at a telephone conference. The judge then concluded that both options were within the scope of valid professional discretion. Since the parents remained unable to agree, the judge exercised “parens patriae jurisdiction” and crafted his own hybrid order. He granted the father authority to make treatment decisions about the current injury, but left joint legal custody otherwise intact.

Be Willing to Look for Compromises

Building creative custody arrangements into a parenting agreement is one way to minimize potential conflict. Conflict can always arise, however. Regardless of who has legal authority, decisions must be in a child’s best interests. When both parties are capable of collaboration, mediation can be a valuable option for resolving any issues.

If you would like to discuss legal custody, take advantage of our free consultation and contact one of our experienced child custody mediators today.