In my near 30 years of practice, I’ve seen the pendulum swing from one parent primarily having sole custody and decision-making, with the non-custodial parent oftentimes not having overnight parenting time during the school week, to now where it is not uncommon to see the majority of 604 evaluations or GAL reports recommending 50-50 parenting time or even an 8/6 schedule and almost always with some form of joint decision-making.

In a perfect world, two divorcing parents should be able to work together, co-parent, make decisions in the best interest of their children, and allowing the child maximum time with both parents, which should continue to be aspirational, but in what I have seen through my years of practice, is not always practical.

Oftentimes, litigants desire to simply get through the process and get it over with, so they agree to joint decision-making, sometimes being led to believe that things will get better after the divorce, only to realize that the nightmare which caused the divorce, continues long after the divorce is finalized.

Communication problems often afflict marriages and contribute to the parties divorcing in the first place. Joint decision-making requires regular, frequent, and effective communication and when hindered by mental health issues such as narcissistic personality disorder, or even addiction problems, effective co-parenting is next to impossible. In crafting allocation judgments that deal with parenting issues and decision-making, lawyers, judges, and other professionals try to build in aids for communication such as parenting coordinators, parenting coaches, mediators, and the list goes on. It begs the question: if all of these professionals are needed, what is the probability of successful co-parenting in the first place?

So, ask yourself during a divorce, “would I rather have a judge decide who makes the decisions today, or deal with the same communication problems I had during the marriage, or maybe even worse, for the remainder of my children’s minority years.” If you need to have additional professionals involved to co-parent, or even a piece of paper that tells you the rules for co-parenting, then you should pause and strongly consider that perhaps co-parenting or joint decision-making may not be the best option for you and your family after a divorce.

James M. Quigley, Divorce and Family Law Partner

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