Joint Legal Custody and Final Decision-Making Authority

Any custody proceeding relating to minor children includes the decision or determination regarding a parent’s participation in the legal custody of those minor children.  Legal custody, as contrasted with “physical custody,” relates not to where the children physically reside, but rather deals with which parent or parents make certain major legal decisions on behalf of a child until such time as the child reaches the age of majority.

Generally speaking, the legal decisions covered by the authority of “legal custody” consist of non-emergency medical decisions, educational decisions, and those relating to the child’s religious upbringing.

Joint legal custody, as defined by Connecticut General Statutes §46(b)-56a(a), is “an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.”

In certain circumstances, whether by agreement of the parties or by court order following a hearing or trial, joint legal custody may be awarded with a catch known as “final decision-making authority.”  In some instances, perhaps where communication between the parents is strained or ineffective, a court may find it appropriate to require the parties to communicate and discuss a major decision in good faith, but may award only one party the ultimate decision-making authority if an impasse remains – essentially giving one party a tiebreaking vote.

In a decision released just this week, Connecticut’s Appellate Court stated that such an award of ultimate decision-making power remains consistent with a finding of joint legal custody, where the trial court enters orders including “any such custody arrangements as the court may determine to be in the best interests of the child” (C.G.S. § 46(b)-56(b)).  Citing its own 1991 decision, the Appellate Court has noted its continued rejection of the argument that ultimate decision-making authority by one party effectively constitutes an award of sole custody.

In its ruling, the Court affirms a custodial arrangement whereby the parties were compelled to attempt to agree in good faith on any major decision relating to the child, after which they were directed to resolve the agreement through mediation.  In that case, only where mediation did not produce an agreement was one party given the authority to exercise final decision-making – effectively, the tiebreak.  The Court noted that the construct and process did not prevent either party from meaningfully participating in the major decisions relating to the child, but rather, merely “provided the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties were stymied.”

Often in family law disputes, it takes creativity and a keen understanding of the parties’ interpersonal dynamics to arrive at solutions that not only benefit the minor children, but could also prevent future tension and litigation.

Any questions about this posting or confidential inquiries concerning the subject matter may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

When Tug-of-War is Not a Game: Relocation After Divorce

Lawyers often find ourselves telling clients that their divorce is never truly “final” when there are children involved.  Regrettably, many of the symptoms that bring spouses to our offices in the first place –the arguing, the conflict, certain confines and restrictions – may continue to exist on some level even after the lawyers have done their jobs and a judge signs a final judgment, especially when the divorcing parents are now entrusted with the responsibility to co-parent young children, from different homes, and from new perspectives.

Nowhere is that more evident than in cases where one spouse seeks to relocate with the minor children to a new state – perhaps hundreds of miles away from his or her former spouse, and his or her former life.

Developments in the law even in the past few years have refined the processes and legal burdens for spouses seeking to take their children to another location, perhaps to be closer to extended family or a support network, nearer to a new job or opportunity, or for other economic reasons.

The legal burden in Connecticut now rests squarely upon the parent seeking a relocation to prove to a court (assuming the other parent objects to the move) that the relocation of the children is for a legitimate purpose, that the relocation is reasonably related to achieving that purpose, and that the move and resulting transplantation is truly in the best interests of the minor child or children of the marriage.

In reaching its determination, a court will likely hear evidence from each parent, relevant witnesses and/or healthcare professionals or experts, and likely a court-appointed guardian to represent the child’s interests in such a proceeding.  Among other things, a court shall consider each parent’s reasons for seeking or opposing the relocation, the relationship each parent has with the subject child or children, any potential enhancement that the relocation might have on the child’s life or development, the feasibility of visitation or maintained contact between the non-relocating parent and the child notwithstanding the geographic shift, and the impact the relocation would have on the relationship between the child and the parent who might be left behind.

These types of post-judgment proceedings are often painful for both litigants and are driven by facts as much as the law – facts which could and often do have nothing whatever to do with the underlying reasons for the divorce itself.  A parent involved in a post-judgment relocation dispute in Connecticut must prepare for a contentious legal battle where personal convictions, risk tolerance, and emotions can and will be tested.

We advise clients in these cases not merely to weigh their legal options, but to evaluate and assess the best interests of their children who are innocently caught in perhaps the cruelest game of tug-of-war imaginable.  We prepare our clients and assist them in structuring their case for the most favorable presentation of facts and evidence to support their legal position.  Those considering or faced with the specter of a relocation petition should retain counsel who are both well-versed in the law and attuned to the reality and repercussions that litigation brings to children’s lives – sometimes years after the ink has dried on a divorce decree.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Domestic Violence and Divorce Litigation

By virtue of executive proclamation, the month of October is Domestic Violence Awareness Month in Westport, Connecticut.

As noted by Westport’s First Selectman Gordon F. Joseloff, “Domestic violence should not happen to anyone.  There is no excuse for abuse.  It is not a family business, and should never be considered nor treated as a socially-acceptable behavior.”

Indeed, domestic violence is a crime, and is frequently the basis for (or perhaps a symptom of) divorce proceedings.  More and more, in the field of divorce litigation, our lawyers handle the complex matters which relate to incidents of abuse within the home – including those issues relating to the criminal prosecution itself as well as the ongoing security of the victim.

At our firm, we have decades of experience dealing with divorces, restraining order petitions, and criminal litigation – often in situations where the three matters run concurrently.  We are similarly experienced with those unfortunate circumstances in which false allegations of criminal abuse have been improperly levied to gain advantage in divorce proceedings.  We handle all types of divorce and child-custody matters, including post-judgment matters, in Westport, Fairfield, Greenwich, and the entire Fairfield County area.

At every turn, our lawyers aggressively seek to advance the rights of the innocent, to protect the victimized, and to correct injustice.

For more information and a confidential consultation on your family law matter, please call our firm or email: hdmurphy@mayalaw.com.

Faulty Misconceptions of Connecticut No-Fault Divorce

Doesn’t fault always matter?
Connecticut is known as a no-fault divorce state. In fact, almost all of the states in this country now have provisions for no-fault divorce. While controversy will continue to exist as to whether no-fault divorce provisions have led to the downfall of marriage in the United States, the question is … doesn’t fault always matter? [Read more]