A colleague of mine recently expressed her belief that custody neutrals conducting Early Neutral Evaluations are almost uniformly recommending joint physical custody.

Early Neutral Evaluation (ENE) is the process in which a team of two neutrals (one man, one woman – to avoid gender inequality) works with a divorcing or separating set of parents to devise a co-parenting arrangement.  Each parent presents his or her view of the facts and circumstances of the children, and what each parent believes is in the child(ren)’s best interests.  Then the neutrals weigh in on what they believe is a suitable custody arrangement, based upon their respective experiences and opinions about the facts and circumstances presented by the parents.

My colleague’s observation suggests that the ENE process leans heavily in the direction of joint physical custody.  My own anecdotal experience suggests otherwise.  I have seen ENE recommendations go in all different directions.

Joint physical custody is most likely to occur when both parents are “fit” parents (for instance, largely free of criminal, chemically dependent and abusive tendencies) and when the parents live in relatively close geographic proximity.  However, if any of the children are under the age of four, some custody professionals hesitate to recommend joint physical custody.

I have been involved as an attorney for moms, dads, and plenty of each who desired to receive a recommendation of sole physical custody in their favor.  The parameters mentioned above regarding joint physical custody certainly do come into play; but every case is unique, so it is difficult to know which factors will be given the most weight.

It is my belief that my colleague’s perception that many ENE’s result in joint physical custody is more likely a sign that many cases in general are resulting in joint physical custody.  Years ago, joint physical custody was unlikely unless couples agreed to that designation, or at minimum, demonstrated an ability to cooperate with each other.  These days, when each parent seeks sole custody, the resolution may be to grant each party joint physical custody, even if the parents do not get along well.  A parenting neutral may be appointed to assist the parties in resolving parenting disputes that arise after the court case is done.

When the statutory factors to be considered in child custody cases were revised by the Minnesota Legislature earlier this year, the substance of the changes did not appear to be significant.  It is interesting to consider, though, how the revised factors have changed the philosophy underlying custody determinations.  I heard a local custody professional discuss how it is not the child’s job to “accommodate” his or her parent’s divorce; it is the parents’ job to accommodate the child’s best interests.

That is to say, in the past, the parents were the focus, since the case regarded what rights each parent had to custody and parenting time.  Nowadays, the focus is on the child, and how to serve the child’s best interests, notwithstanding what will serve the parent’s interests.  This approach contemplates that a parent’s interest will be (or should be) served indirectly by serving the child’s interests.

Hard to believe it’s been seven years since I blogged about this last.  Not much has changed on the subject in seven years, but there are trends that have become more common in practice over time.

As mentioned previously, the decision about where children will attend school tends to lean in favor of where the children previously attended.   The most common exceptions are (a) if the parents agree about the child attending a different school; or (b) neither parent resides in the school district of the previous school anymore.

One of the current trends coming from custody professionals is to avoid imposing a change of school on the children by encouraging both separated parents to reside within the child’s school district.  That way, if one parent has the need to relocate, the other parent can provide residency for the child to remain a student at their current school.

The other trend is for the parenting plan to contain a provision that a parent who relocates outside of the school district to be responsible for transporting the child to and from school on their custodial days.  In some cases, this may impact how many school-night overnights the relocating parent will have.  Even if the parent is ready and willing to provide the transportation to and from school, the time a child spends in the car, particularly early in the morning, can put a chilling effect on the relocating parent’s parenting time.  The farther away from the school the parent resides, the bigger this issue becomes.

Finally, any effort that one parent makes to avoid naming the other parent as a contact on school forms is heavily frowned upon.  Even a parent who has relatively infrequent parenting time is entitled to be informed and updated about the child’s school and how the child is progressing in their education.  On occasion, a custodial parent will list their current spouse (the child’s step-parent) as the “other” parent on the registration documents.  Both courts and custody professionals will nearly always insist that the child’s natural parents be the contacts listed in the student’s school file.