The general rule is that joint or shared custody, requiring both parents to agree on decisions, is inappropriate where parents have demonstrated an inability or unwillingness to cooperate in making decisions concerning their children.
In its April 23, 2014 decision in Thorpe v. Hamoet, the Second Department affirmed the determination of Kings County Family Court Judge Anthony Cannataro to award a mother sole medical and educational decision-making authority, and to otherwise award both parents joint decision-making authority with respect to all other custodial matters outside the spheres of medical and educational needs.
Although it was evident to the appellate court that there was some antagonism between the parties, it was also apparent that both parties generally behaved appropriately with their child and in a relatively civilized fashion toward each other. Furthermore, there was no evidence that the parents were so hostile or antagonistic toward each other that they would be unable to put aside their differences for the good of the child.
Sometimes defining sole or joint custody differently, courts have found ways to erode all-or-nothing awards even when parents are antagonistic towards each other. Judges seem comfortable splitting decision-making into distinct areas; giving parents separate “zones” or “spheres” of responsibility.
Thus, in addition to education and medical areas, Courts have granted one parent decision-making authority in the spheres of religion, hygiene, mental health, dentistry, summer activities, extra-curricular activities, weekend activities, social events and finances.
In this fashion, both parents may remain more actively involved in their children’s lives. Still further, if both parents must live within this balance of power, détente between the parents is encouraged. Indeed (continuing the political metaphor), each parent may develop a policy of openness (glasnost), promoting consultation, compromise, and more meaningful exchange of information.
In all events, it would seem that the parents, themselves, are in the best position to allocate the particular subjects as to which there will be required consultation, or required agreement, or specifically-allocated final authority.
Litigation would not seem the best-suited forum for reaching an agreement on these matters. Alternate Dispute Resolution (ADR), whether through mediation or the Collaborative Divorce Process, seems a far better choice.