Joint Decision Making

{3:48 minutes to read} In New York, we refer to “joint legal custody” as joint decision making in which neither parent has a superior right to make decisions for the children. It sounds reasonable, and most parents agree to joint decision making without much thought.

But then I ask “What do you think will happen if you can’t agree upon a major decision?”

A large percentage of my clients believe that they will not have any substantial conflicts in making joint parenting decisions, much as they had been doing. If clients tell me that there is a particular issue about which they believe they will be in conflict, that can be addressed in mediation and hopefully resolved.

For others, there is a concern that there will be conflict, if not on all but on some issues. If that is the case, language that simply provides “The parties agree that they shall have equal decision making and shall consult with each other in regard to all major decisions affecting the children” is not particularly helpful.

For other clients, there are no particular issues they imagine will be difficult, but they do have a history of different parenting philosophies and choices. For those clients, we discuss a process that they believe they can follow to help them make joint decisions.

First, we address what would be the major decisions upon which they will need to agree. Typically, they are all decisions affecting a child's growth and development, including:

• Choice of school;

• Course of study;

• Extent of travel away from home;

• Extracurricular activities;

• Choice of camp;

• Major medical treatment;

• Lessons;

• Psychotherapy; psychoanalysis or like treatment;

• Part or full-time employment;

• Purchase or operation of a motor vehicle;

• Especially hazardous sports or activities; and

• Decisions relating to actual or potential litigation involving a child directly or as beneficiary.

Each family has different concerns, and some other topics that are added to joint decisions specifically are camping, age at which a child may be left alone, and social media use.

So, what can a couple do if they have conflict in joint decision making after they sign the agreement?

First, of course, they engage in meaningful discussion about the issue. If that does not resolve the conflict, a structure that many couples choose as being the most likely to resolve the issue with the least amount of discord is this:

Typically, the painful and challenging emotions that exist during the mediation of the separation will have eased somewhat over time. Most parents are then able to resolve joint decisions even if they have conflict. But if they can’t, having a process to follow is helpful.