The Most Important Type of Litigation
Our clients don’t want custody, they need it. We are hired by people who demand the best. Custody comes in many variations. As divorce practitioners, we have handled thousands of custody cases. The following custody arrangements may be right for you:
Custody can be described as follows:
- Sole custody:
- Residential custody to one parent, with joint legal custody to both;
- Residential custody with one parent, and joint legal custody, with the residential parent having final say;
- Joint / shared parenting, true joint custody;
- Residential custody to one parent with joint custody between the parents and a neutral parent coordinator in connection with decisions; or
- Shared custody with spheres of influence, recognizing one parent's need or special ability to be responsible for certain issues.
Custody is a function of the parents’ ability to work well together, and it is based on, theoretically, what’s in the best interest of the child or children. Our attorneys argue "your case" so that the Judge is clearly shown that you are the best parent. Judges do not “live” with the parties and have no idea as to who is the best parent: We must demonstrate that you are the best parent.
In the past, the Judges have often asked for the assistance of Law Guardians and Forensic Psychiatrists or Psychologists. The Law Guardian is still a fixture in each and every custody case, as a lawyer is necessary to represent the interest of the child (usually after the child is able to speak after ages 2-3 through age 17), and Forensics, although previously used in almost every case, are less prevalent. The prevailing trend is away from Forensics, as Forensic Psychiatry and Psychology are not shown to be objective or verifiable tools in determining which parent is better suited to be the “custodial care giver.” There is much dissention as to whether or not a forensic is influenced by the prejudices and bias that they, as a person, are bringing to the table. Forensics make decisions concerning a child’s life when they are less informed than the parents, "the attorneys", and the Judge, as to the child’s history. Indeed, forensic tools such as the MMPI, together with interviews of the children and collateral sources, have often proved to be less than accurate. Our firm has, on several occasions, proven Forensics to be incorrect in their assessment of our client and our opponent. We use and employ experts to win. We also welcome the opportunity to cross-examine and discredit our adversaries' experts through skills and aggressive questioning during trial.
For some, custody does not have to be a “win or lose” proposition. However, if a party truly believes that they are better for the child or that the child is in danger while in the care of the other party, then there is no alternative to seeking custody for the safety of a child. We have the experience of thousands of custody matters and we can aggressively prosecute and defend custody matters on our clients’ behalf, because we have the experience needed to do so. Our clients hire us because they do not want to lose. We pride ourselves in giving our clients the best possible result, together with the personal attention they require throughout this difficult time in their lives.
1. SOLE CUSTODY
Sole custody is when one parent has custody, subject only to the other parent’s visitation rights. The custodial parent receives support from the non-custodial parent. The parent who has custody is exclusively in charge of the health, education, and welfare of the child or children and does not have to consult with the other parent about any of these issues. If the custodial parent (here the parent with sole custody) makes bad choices or poor decisions, he or she is in danger of losing custody.
Sole custody can also include “information sharing.” There are certain agreements / settlement / orders whereby one parent is demanding sole custody and is refusing to give “joint legal custody” to the other parent. There is often a “half step” available, whereby the parent with sole custody agrees to provide a reasonable amount of access to the non-custodial parent with respect to school and medical records. This does not mean that the non-custodial parent has any “input” in decisions, but they certainly have the right to access records. Sometimes, agreements, orders or stipulations are actually written whereby one parent is given sole custody and they list rights available to the non-custodial parent that are akin or very similar to giving the non-custodial parent joint custody. For example, the agreement will say the custodial parent has sole custody but agrees to cooperate with the non-custodial parent in sharing information and otherwise consulting with the non-custodial parent regarding major issues.
Sole custody is appropriate if parties do not work well together. It is the most popular form of custody awarded to parties after a custody battle. A Judge (the prevailing Judges in Suffolk and Nassau) consistently reiterate on a daily basis that they will not grant joint custody to people who are fighting for custody. It just isn’t logical. If the parties cannot agree as to who is the better parent, how can they agree in the best interest of the child or children. Joint custody is never given (almost never) after a Trial; and after a Trial there is a clear winner and loser. The winner is always the one with sole custody, and the loser is the one who has lost their ability to obtain joint custody through a settlement.
The offices of Bryan L. Salamone & Associates, P.C., have handled unique, tough and very difficult custody cases. We have prevailed against all odds on custody cases where the forensic psychiatrist and the Law Guardian both were against our client. We still prevailed and won custody for our client. We have won custody for people who did not fit the “traditional model” of a custodial parent. We have won custody for disabled parents with little abilities; we have won custody for men with sordid backgrounds. There have been many tough and difficult custody cases that we were proud to prevail on and proud to have fought. Custody is one of the only things worth fighting for. Children grow up quickly. If a party loses custody, for all purposes, they lose everything. Our clients, for the most part, will refuse to step down and refuse to “lose.” We have the experience to counsel clients as to their chances in a custody battle. A review of the Unified Court Systems Calendar shows and legitimizes our claim that we handle more contested divorces than any other firm. We have six dedicated matrimonial attorneys that do nothing but divorce and family law, day in and day out. We are litigators, and every day of the week, fifty-two weeks a year, we are on the job; in the Court; and trying cases. It is with a vast amount of experience (we handle more cases, based on the records we’ve seen, than any other firm in Nassau and Suffolk County) that we can tell you your chances for custody, and we can try your case.
Custody involving forensics and Law Guardians as useful tools is something that we do day in and day out. We are well-versed with all forensics and every Law Guardian, and we have had cases with most any adversary who deals with matrimonial practice. We are confident in our result that our clients are seeking custody for the best interest of their children.
2. RESIDENTIAL CUSTODY TO ONE PARENT WITH JOINT LEGAL CUSTODY TO BOTH
Joint Legal custody does not give anyone a “break” on child support. The residential custodial parent is the person with whom the child resides. It’s that simple. If the parties, together, are amenable to joint legal custody, then the parties will do so by agreement or settlement. The Courts are not granting joint legal custody to parties who cannot agree, between themselves, and act in the best interest of the children. Nothing is more evident as the parties continue to battle for custody if they cannot agree to the best interest of the children. If a husband and a wife, between themselves, cannot place the residence of the child with one of them, for the best interest of the child, then they are clearly not appropriate joint custodial parents. It is only when the parties agree that one of the parties (who would not usually obtain joint custody) is given the badge of honor…joint custody. There are Suffolk County jurists who will caution the parties that joint custody is not a badge of honor, it is a responsibility. It comes with great responsibility. The parties must: (a) Consult with each other about major issues, health education and welfare; and (b) Share information and share decision making.
Unfortunately, joint custody is not a complete panacea for all that ails. For example, joint custody is certainly not going to determine what happens if the parties consult with each other; and cannot agree to make a decision in the best interest of the child. For example, the mother wants the child to take ADD medication, and the father does not. Who wins? If they do not reach a decision, it is not appropriate for a decision not to be made…it is then appropriate for the mother to override the father and do it anyway or the father to bring the mother to Court to change his custody saying that she is making “poor decisions”. Once the party who doesn’t have residential custody has a significant difference with the residential custodial parent, the residential custodial parent usually wins. If it is a bad decision, the party who does not have residential custody will then seek residential custody via Family Court or subsequent application.
3. RESIDENTIAL CUSTODY WITH ONE PARENT AND JOINT LEGAL CUSTODY WITH THE RESIDENTIAL PARENT HAVING FINAL SAY
Hereinabove the question was posed, “What happens when the residential parent and the non residential parent (with whom joint custody is shared) cannot make a decision? An appropriate agreement will say the residential parent has final say. This simply brings clarity to the inevitable. The non-residential parent (one with only joint legal custody) can only have the redress of seeking a reversion of custody through petitioning the court.
4. REGARDING JOINT SHARED PARENTING AND TRUE JOINT CUSTODY
Joint shared parenting and true joint custody are appropriate for:
- People who work extremely well together;
- People who live in very close proximity to each other; and
- People with unique/flexible schedules (doctors, nurses and firemen).
Joint shared parenting/true joint custody (hereinafter described as shared parenting) is something that has been proposed by many forensics (forensic psychiatrists) in Suffolk and Nassau County. One of our forensics is well-known for the “Shuffle,” wherein in week one the mother has four days and the father has three days out of the seven-day week, and on week two, the father has four days and the mother has three days. It is an equal split of time. Based on this agreement (or the one week on/one week off variety), the parties have 50%-50% parenting time. They also have joint decision-making powers. These are parties who work well together. These are parties who live in the same school district. These are parties who both have appropriate homes for the child or children. This is a great relationship for people who have unique schedules, such as a fireman who works three days straight and has several days off. This is also applicable to certain doctors and often towards nurses and flight attendants. Unfortunately, this is a very rare type of custody, and even more unfortunate is the most recent laws affecting this type of custody.
The joint shared parenting or shared parenting custody has now fallen into a quagmire of child support regulations and case law that is not appropriate nor is it fair. For example, if the parties live next door to each other in two identical houses and they share custody identically one week to one party and the second week the children go to the other party, there should be little or no child support flowing from one to another. However, if one party (the husband) is making $60,000.00 a year and the wife is making $40,000.00 a year it would seem that there is only a $20,000.00 difference. Logic would dictate that the husband would only pay child support (17% for one child, 25% for two children, etc.) on the difference between his wife’s income and his (here it is $20,000.00). This is not the case. The Courts are now requiring the husband in our scenario to pay 17% for one child out of his entire $60,000.00 income. This is unconscionable, and agreements can be made that differ with this. Nevertheless, the Courts will go by the prevailing case law, which is inequitable and unjust to the parent who is making even slightly more money. For example if a husband makes $51,000.00 and a wife makes $50,000.00, and they share the time exactly equal, the husband will pay child support on the entire $51,000.00 not just the $1,000.00 of additional income above what the wife is earning.
5. RESIDENTIAL CUSTODY TO ONE PARENT WITH JOINT CUSTODY BETWEEN THE PARENTS AND A NEUTRAL PARENTING COORDINATOR IN CONNECTION WITH DECISIONS
In this scenario, the residential custodial parent receives support. The parties enjoy joint custody with the parties cooperating concerning records and information and sharing decisions and having equal input with respect to decisions. However, in this scenario, if the parties cannot reach an agreement they call what’s known as a “neutral parenting coordinator” who will listen to both parties and make a decision for the parent. Tripe. How it is possible people allow a stranger to make decisions for them, yet they are civil enough to intelligently discuss what’s best for the child, yet fail to come to a decision they both can agree to. I cannot understand how people would agree to this, however, I have had dozens and dozens of cases each year where the parties insist on this or agree to it against my advice. Our thought in connection with this novel form of custody is that if the parties can’t agree, for example, whether or not a child should be on a certain medication, whom do they sue after they give their “pitch” to a neutral parenting coordinator who then makes the decision for them? It would be much better if one of the parties was wearing the pants and actually made the decision (usually the party with the residential custody) only to be subjected by the other party’s attack in the subsequent Family Court action, where the party who made the decision could be questioned, in front of the Court, as to the appropriateness of the decision, the motives of the decision, and whether it is in the best interest of the child. Additionally, even though this law firm works with each and every neutral parenting coordinator that we are aware of who are located in Suffolk and Nassau, there are many times they don’t work well with the parties, or one party will immediately feel that the neutral parenting coordinator is anything but neutral, and is siding with the other party each and every time. Neutral parenting coordinators are not always available; and, they are not free.
6. SHARED CUSTODY WITH SPHERES OF INFLUENCE, RECOGNIZING ONE PARENT’S NEED OR SPECIAL ABILITY TO BE RESPONSIBLE FOR CERTAIN ISSUES
In these scenarios, there is residential custody with shared joint legal custody or shared parenting, if a certain parent has a bad track record, (or makes poor decisions) or if a parent has special abilities, that parent may have a the say with respect to a certain sphere. For example, if one of the parent is ascribing to a less-than-reputable belief system (does not believe in education; believes in a destructive religion; holds a belief as to certain types of medicine that can harm the children), that parent will not have any influence or decision-making with respect to certain “spheres of influence.” For example, if a parent believes that the only way to cure a child of a fever is to beat the child and place leaches all over him, that parent will lose his / her ability to make medical decisions. The more rational parent will enjoy the sphere of influence, whereby he / she will be in charge of all of the child’s medical decisions. Conversely, if one parent is a doctor and the other parent is just a well-meaning father, the parent who is a doctor, based on their special abilities, may be granted the sphere of influence over medical treatment. Other spheres of influence are usually education and religion. For example, if one of the parents has specific aptitudes, intelligence or abilities in the area of education (he or she holds a PhD or is a specialized educator) then that party will have the privilege of being the person who makes the decisions in the educational sphere of influence.
