All the divorce laws are still wrong. Nothing has changed in the past 30 days since my last blog post on child support. To be clear, the bonus and commission rules aren’t the only things wrong with child support. More to come on that in later posts.

I’m throwing out softballs to start. Please realize, too, that I’m purposefully taking an extreme approach. The things I write may, or may not, be my position if you see me in court or in mediation. Instead, these examples are meant to point out black holes in how things operate within our family law world.

Only five people responded last time, and none of them told me I was wrong. Therefore, I’m 1-0. After reading this next post, you can click here to send me your comments and change my mind.

Child Custody is up next. You’ll tell me: “Ketan, there’s nothing wrong with our child custody statutes, except the ongoing debate about the shared parenting default rules not being in place.”

I’m not touching the 50/50 thing with a 10-foot pole.

Unlike the child support post, I’m going to lay out a number of issues, starting with the biggest: legal custody.

Statutorily, there is no such thing as “legal custody” even mentioned. This is insane, as one of the most hotly contested issues I find in mediation is whether to agree on “joint legal custody” or “sole legal custody,” or the phantom “joint legal custody with one parent getting the final decision if they can’t agree” (i.e., sole legal custody).

The statute says “joint custody to the parents shall be considered upon the request of either parent,” which means absolutely nothing. In fact, it’s counterintuitive to the case law, which says the “best interest(s) of the minor child shall be the polar star by which courts make a decision.” Lame. Does this statute mean that the court cannot consider “joint custody,” whatever that means, if one parent doesn’t ask for it? No, it does not. The court will do what the court is supposed to do, regardless of what someone asks for.

The law is wrong, as written, in that it:

Doesn’t identify joint decision-making at all;
Doesn’t define what “joint custody” means at all, and apparently, overrules the judge’s authority to consider it unless requested;
To proactively fix another issue, doesn’t allow the judge to specify that one parent can make decisions over one issue, like education, and the other parent makes decision over another, such as medical.
Instead of giving the judge 100% authority to rule on the best interests of the minor child. What’s the point of limiting the judge, ever? Amazingly, there two cases that dealt with this issue, Diehl v. Diehl, 177 N.C. App. 642 (2006) and Hall v. Hall, 188 N.C. App. 527 (2008).
Doesn’t identify the interrelation of legal custody issues and child support, i.e., a parent with sole legal custody could theoretically sign up a child for all kinds of cosmetic surgery and put the other parent on the hook.

Easy fix. Simply address the issues above. Tell me what other issues I missed regarding legal custody.

There’s more that can be fixed, though:

Why do the laws archaically refer to “visitation” and “custody” simply to allow one parent to inflame the other? Everything should be “custody” or “custodial time.” Seriously, this is an issue that comes up in mediation.
The laws are improperly verbose. They specifically state the judge can award alcohol monitoring. Does this somehow mean the judge cannot require ongoing drug testing, or psychological or psychiatric treatment over time? No, it doesn’t. And if it does, this is simply wrong. There’s no reason to make alcohol feel special in the custody statutes. This is all within the “polar star” stuff up above. Otherwise, the law is just discriminating in favor of alcohol versus other vices.
Removing almost all statutory language regarding electronic communication, except to say: “Electronic communication may not be used as a replacement or substitution for custody ~~or visitation~~.” Again, this is redundant nonsense that we all know the judges can, should, and have been doing for years.

I’m probably right about all the things above (big thanks out to Rebecca Watts for finding both cases in record time).

Just in case I’m not, change my mind or support my cause by clicking here.

September 29, 2021/by FamilyLaw