In the old days, one parent was the “sole custodial parent” and the other parent was the “visiting parent.” The “visiting parent” usually saw the children every other weekend and for one dinner a week. The “sole custodial parent” was entitled to make major decisions on their own with respect to the children without necessarily involving the other parent.
In the early 1990’s, all of that changed, even the labels. The terms “sole custody” and “visiting parent” are almost extinct now as are alternating weekend visitation arrangements unless that’s what the less-involved parent wants. Therefore, if you do hear about a couple that has this type of antiquated arrangement it is because that’s what they both wanted. Don’t expect to attain this for yourself or be relegated to this arrangement if you or your spouse wants more involvement with the children. Absent unusual circumstances, parenting time Orders are far more expansive these days.
These days, one parent is the “Parent of Primary Residence” (also known as the “PPR”) and the other parent is the “Parent of Alternate Residence” (the PAR). The designation is not driven by how much time the children spend with each parent, but rather by twelve statutory factors which impact on the custody decision. Examples of these factors (to list just a few) are: the interaction and relationship of the child with parents and siblings; the needs of the child; the stability of the home environment offered; the continuity of the child’s education; the parent’s employment responsibilities and other factors. The umbrella term for all of these factors is the “best interests of the child.” Parents often think that the PPR/PAR designation tracks which parent spends more time with the children; however, time spent and PPR/PAR designations are two separate baskets of apples and oranges.
It is important for parents to be aware that there is a qualitative difference between having the designation “PPR” and having the designation “PAR.” Unfortunately, some attorneys don’t adequately explain the difference between the designations. Here is the difference: if you are the PPR you are legally obligated to consult with the PAR as to major issues regarding the health, welfare or education of the children. However, if a difference of opinion arises as to one of these major issues, then the PPR’s opinion will trump the opinion of the PAR. This is because Courts have to defer to one or the other parent, so they assume that the PPR has more knowledge regarding the children and they always default to the parent who has the PPR designation. It does not matter if your Divorce or Custody Agreement says that both parents have equal decision making authority, or that the designation will have no bearing on decision making; the reality is that if push comes to shove and you end up in court over a major issue involving your children, if you are the PAR your opinion will not matter. This rule does not apply to minor issues, since it is assumed that those get decided by the parent who has parenting time at the time when the decision is to be made.
The parents’ respective designations (“PPR” or “PAR”) can be determined in one of several ways along what may be visualized as a spectrum:
- agreement reached between the parties between themselves;
- agreement reached between the parties through the courts’ Parent Custody Education and Mediation programs;
- agreement reached between the parties with the assistance of counsel;
- obtaining a “Custody Neutral Assessment” which is an inexpensive but superficial custody evaluation offered by the Court system (talk to your attorney about whether not a CNA is right for you) and reaching an agreement based on the CNA;
- obtaining a private custody evaluation which is a more expensive but also a much more in-depth custody evaluation using a private custody expert and reaching an agreement based on the private custody evaluation;
- going to trial or arbitration, having the custody expert(s) testify and having a Judge or arbitrator make a decision.
Custody litigation to decide who will be “PPR” and who is “PAR” is time-consuming, expensive and emotionally difficult, especially for the children. Therefore, before you undertake this route, you need to discuss the pros and cons with your attorney.
Some attorneys and many private mediators have been promoting the idea that “PPR” and “PAR” designations aren’t necessary at all. They have no legal authority for this; they just believe that designating one parent as “PPR” is more trouble than it’s worth and that parents can always return to mediation if they cannot work out a major problem. This approach may be admirable in theory but it may wreak havoc in reality. For example, what if there is no time to attend mediation? If there is a medical emergency that requires decisive action and the parents disagree as to what course of action to take, there may be great harm to the child while the parents are arguing. This is not pure academics-we have seen it in our own practice. Even if there is more time available, such as a question of school enrollment or a disagreement over a non-emergent medical procedure, parents should not assume that the Courts will intervene on their behalf and make a decision for them. Instead, the Courts will take between four and six weeks to hear the initial application, then send the parties to Court-Ordered mediation at the Courthouse which may involve another two or three months, then the Court will generally take another four to six weeks to hear the matter again if mediation fails. In short, Courts don’t want to make these decisions for the parents, so if there is no “PPR” designation and the parents cannot reach agreement on a major decision, they may be in for a long wait and a big-time runaround.