A difficult part of the divorce process for couples is making decisions regarding custody and child support. New Jersey divorce lawyer and mediator Alison Leslie discusses various child-related issues that parents may come across during divorce, including how to create a parenting schedule for the holidays and whether or not both parents are responsible for paying for their children’s college education. She also delves into how custody and child support is decided when dealing with children of unwed parents.
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Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speaker: Divorce Lawyer & Mediator, Alison Leslie.
Alison Leslie is a New Jersey divorce lawyer and mediator who is heavily involved with the New Jersey State Bar Association. She is a past chair of the Solo Small Firm Section, has served on the Family Law Executive Committee, and is a member of the statewide Ethics Committee. SuperLawyers has designated her as a rising star for the past nine years. Aside from being a divorce lawyer and mediator, Alison has also been a stepparent for the last 12 years and is a mother of a four-year-old and a three-year-old.
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Read the Transcript of this Podcast Below.
How does a parent obtain custody of their child?
Leslie: The best way to do it is by applying to the court for an initial order of custody or entering into a consent order by the consent of both parents.
What does a consent order mean?
Leslie: Generally, when a married couple is deciding to be divorced, what they will do is they will first discuss where the kids are going to live. It’s usually done in a conversation between the two parents, depending on the ages of the children. Generally, the parents have an idea as to what their ideal parenting situation would be after they separate. If they’re able to enter into a consent order, then they’re able to say, “Well, the child will primarily live with you or with me,” and then reduce that to writing.
Where do children typically spend time on the holidays? Who determines those schedules?
Leslie: Hopefully, the parents are able to speak about and discuss the holidays. But this is also generally an emotional issue, and sometimes tempers can get raised and people can get upset over the emotions of the holidays. Ideally, the parents will sit down and review what holidays are important to them. Also, they will take a look at not only a regular calendar, because there are a number of holidays that they may have missed, but more importantly, the school holidays because frequently schools are closed for other holidays and three-day weekends that parents might not necessarily celebrate, like President’s Day. They’ll determine what holidays are important to them and determine how they see their children in the future reviewing it.
They also need to sit down and discuss what traditions they believe are important to them. For example, if Christmas Eve is usually spent with one party’s family and Christmas Day is usually spent at the other person’s house, then that’s a tradition that really should continue and is important to continue. Then the question is where do the children wake up Christmas morning. Are they brought to one parent’s house every year, or is that alternated? Also important to think about is how old are the children. Do they believe in Santa Claus? Do they believe in the Easter Bunny? Do they believe in other entities that are important to them? Is it important that the children trick-or-treat with both parents? Sometimes, even put in Halloween as a holiday and determine what costume they’re going to dress the child in and what neighbourhoods they’re going to go with.
It’s very important for the parties to sit down and try to discuss it. Judges generally do not like to decide how a holiday is going to be spent unless they’re truly forced to do so. The more that the parties are able to discuss, the better it is for the children. Some people alternate holidays, some people split holidays in half. It really depends on what traditions are important to the parties and how they want to craft their traditions with their children.
How does a separated couple decide on a parenting schedule when they’re both still living in the same house?
Leslie: This is very difficult. Generally, when people are sitting down to discuss this, they don’t know for sure where either one of them is going to live. The house may be listed for sale; it may take several months and even up to a year for a house to sell. In the meanwhile, they’re living under the same roof and there simply isn’t enough money for each party to move out and to try a trial separation. It’s very, very stressful.
The best that parents can do when they’re living under the same house is to try alternating to the extent that they can of who is going to be the parent of, I call it “the primary responsibility for,” certain times in the house when they know that different parents are going to be available for the children. Maybe you alternate weekends; maybe you say every Friday night is with dad and every Saturday night is with mom. This way, it also gives the party a break. Maybe you divide what the chores are as far as working on homework with one child or bringing another child to activities. This way, the parenting duties are divided between the parties and the parties are able to figure out what the activities are of the children and how they’re going to be able to continue those either once the house sells or once both parties are able to move out of the marital home.
This also becomes very difficult because parents who are extremely involved may have some difficulty adjusting to a new parenting schedule once the parties separate. Children are actually very resilient; they actually adjust much to their parents’ chagrin. Usually, it’s the parents who have the difficulty adjusting to not seeing their children every day. For example, if one party always brings the children to school every day, that’s their time in the car to see their children and discuss with them if they’re looking forward to their day and whatnot. Now, they’re only going to see them for seven days out of a 14-day schedule, or maybe they’re not going to see them during the school day. That’s usually more difficult for the parents to adjust than the children. But it’s something that they’re going to have to adjust to, and I assure you the children will adjust to it too.
If one spouse never disciplined the children during the marriage – they were a Disneyland mom or dad – and that child wants to live with that fun parent after divorce, what can the other spouse do to either get custody or to ensure adequate routines and disciplines for the child?
Leslie: Generally, a court will take into their consideration the age of the child. The court, generally, does not like to speak with the children, but they will if they have to in a certain situation. The children’s preference is important but it is not the end all, be all; it is not the final decision. What the court will look at is who is the parent that primarily did discipline the children. Who worked with the children on their homework? Who was the parent that was picking the children up when the children were sick at school? Who is the parent who dealt with all the heavy lifting types of parenting issues that you have to do?
The other thing is that once parents separate, the parent who was the “fun parent” will frequently have to do some of the heavy lifting also. As children get older, the homework is harder, and frequently, the parent that was the fun parent is going to realize that okay, every other weekend and certain days during the week, I have to be there. I can’t just be doing only fun things with them because I am the only person that is there to do the homework, to make sure that it gets done, to tell them to make their bed, to tell them they have to take a shower, to do all that difficult parenting thing. Although they may still be perceived as the fun parent, children learn very frequently and very quickly that the fun parent is no longer as fun as what they once perceived them as.
If the parents can’t agree, what are the steps to creating a co-parenting plan? Who creates it?
Leslie: If the parents can’t agree, usually what they’ll do is first attempt parenting mediation – and that can either occur privately or at the courthouse with the court mediator who deals with co-parenting. If they’re unsuccessful at mediation, then the court will appoint an expert and the expert will interview the parents and determine what that parenting plan will be.
It’s expensive, and it is difficult for parents to give all that control to a third party who tries to make the determination for the best interest of the parent. If they don’t agree with that expert, they can have a trial and have the court determine after listening to testimony from that expert as to what the co-parenting plan should be. It’s extremely invasive – the children are interviewed, the children speak to the expert, the expert then relates this to the court – and it’s lengthy, time consuming, and emotionally draining. Clearly, the more parents can agree, the better it is for a family as a whole.
If there’s a lot of conflict between the parents, is joint custody still a possibility?
Leslie: It absolutely is a possibility. However, once an agreement is reached, the agreement needs to be as detailed as possible to avoid as much conflict as possible. You want to discuss who is going to have the day-to-day decision. Who is going to decide the large-scale decisions? If there is conflict with the large-scale decisions, how are the conflicts going to be resolved? Are they going to submit it to a parent coordinator who could make these decisions? Are they going to submit it to the judge? Who is going to be the tiebreaker? That is generally the biggest issue in dealing with high-conflict parents who both love their children and both want to be joint, equal custodians of their children.
Is litigation or mediation a better process for resolving disputes regarding child custody and visitation?
Leslie: Mediation is clearly a better process for resolving the disputes regarding custody and visitation because it really puts the power into the parents’ hands. And when you’re discussing your own family, you want to be able to have that control and you want to be able to have that decisiveness to determine what is in your child’s best interest. When you litigate, an expert decides, and ultimately a judge if you can’t agree with what the expert believes in. It’s emotionally draining as well as financial draining. The better the two parents are able to agree with a facilitator such as a mediator, the better it is.
How is custody and child support decided when dealing with children of unwed parents?
Leslie: This issue is a little bit more complex. Frequently, it actually first goes to litigation. With unwed parents, you have a different dynamic than you do with divorced parents. The reason being is that, sometimes, unwed parents may not have even been in a relationship with each other; they’ve never discussed as to how would they make major decisions such as choosing a religion, choosing a school, or choosing a pediatrician. All of these issues frequently surprise people.
However, there is mechanism for doing it, and they would file an application with the court. It’s under a different docket and a different judge generally decides it – although depending upon the county in which they file. They would then ask for child support, and the child support is determined the exact same way as it would be for children of married parents, which is through the New Jersey Child Support Guidelines. It’s a formula: it includes each parent’s income, the number of children, the cost of medical insurance and whatnot, as well as the parenting schedule.
Custody and a parenting time schedule is frequently determined at mediation, which frequently will occur on the day of the court date. If it is not determined then, either it will be sent to an expert or the court will determine an interim schedule until the parents can either get before an expert or decide by themselves. The difference with unwed parents is that the court has more leeway with regards to the manner of which they will determine the custody and the parenting time of this child as well as the visitation schedule. The courts frequently take a more hands-on approach with regards to these cases.
After divorce, are both parents responsible for paying for college for their children?
Leslie: It depends on what the parties agreed upon in their agreement. If they agreed that they will pay for college, then yes, they are obligated to pay for college. If they have not agreed to pay for college or it has not been addressed in their case, there are a number of issues that the court will consider in allocating the cost of college, such as what is the relationship between the child and the parent from whom the child is seeking the college education to be paid. Did that parent have any input into the college selection process? Did the child apply for child aid by way of loans, scholarships, and grants? Did they discuss anything prior to the child applying for school? What were the child’s grades? What is the education of the parents? Are they parents who have doctorates and are now saying you can’t go to college? Or is the parent someone who never went to college and does not value a college education? All of those things are important in determining the allocation for payment of college and whether a parent is obligated to pay for college.