Thus, in Anthony McK. v. Dawn M., 2009 WL 8527772, Kings County Family Court Judge Paula J. Hepner, authorized a mother to obtain a passport to obtain a passport for the parties' 11-year old daughter, over the objection of the father (indeed, the father had entered his daughter into the State Department's Children's Passport Issuance Alert Program). Moreover,the child was specifically authorized to travel with the mother.

Judge Hepner also noted the Federal provisions relating to the issuance of a passport to a minor:

[M]inors under the age of sixteen are required to appear in person when applying for a passport [22 CFR 51.28(a)(1)pdf]. Both parents are required to execute the application on behalf of a minor under the age of sixteen when applying for a passport for the first time and provide documentary proof of parentage [22 CFR 51.28(a)(2)]. One parent may execute a passport application for a child if s/he provides "documentary evidence that such person ... has sole custody of the minor" in the form of "an order of a court of competent jurisdiction granting sole legal custody to the applying parent containing no travel restrictions inconsistent with the issuance of the passport, or specifically authorizing the applying parent to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian" [22 CFR § 51.28(a)(3)(ii)(E)]. Before a passport is issued, the parent of a minor may file objections "so long as the objecting party provides sufficient documentation of his or her custodial rights or mother authority to object" [22 CFR § 51.28(c)(1)].

Generally, passport regulations and forms may be found online. For minors under 16, go here. For 16- and 17-year olds, go here.

Forms are also available online. Under ordinary circumstances, it is necessary for a passport application (Form DS-11) to be executed and presented, in person, by the minor and both parents at a passport acceptance facility (usually a post office). However, if both parents are not to be in attendance, then it is necessary for the non-appearing parent to execute a Statement of Consent (Form DS-3053), unless a court order provides otherwise.

It is always advisable for a parent to travel with a consent from (Travel Consent form.pdf), signed by the other parent and notarized, authorizing the parent to travel with, make arrangements for, and make health care decisions concerning the child.

The result: one child who may be suicidal; the other self-mutilating.

Reading appellate court decisions cannot possibly reveal the nuances faced by sitting Family Court Judges. This, then is not a critique of any one particular decision. Rather, we must acknowledge that the overburdened judicial system may no longer be able to serve “the best interests of the children.” In fact, the court system itself may be hurting our children far more than any decision.

After four years of litigation, including the year needed to obtain this decision, the Appellate Division, Second Department, in Matter of Dana H. v. James Y., sentenced the Y.-family children to another two years of court fights . . . . unless their parents can get their act together.

James Y. and Dana Y. H. (now-remarried) divorced in 2004. At that time they had agreed to share joint custody, with the mother having primary physical custody. However, the mother relocated with the children to South Carolina without the permission of either the father or the Family Court.

As a result of the mother's relocation, physical custody was transferred to the father. He moved with the children to live with his mother.

Both parties then petitioned the Family Court for sole custody of the children, with the mother also finally seeking for permission to relocate the children to live with her and her new husband in South Carolina.

After a trial conducted over the span of a year, Nassau County Family Court Judge Conrad Singer by his June 23, 2008 order determined that the mother would be awarded sole custody of the children, provided that within six months she returned to live in New York.

On the other hand, if the mother refused to return to New York, it would be the father who would have physical custody of the children, but the mother would have final decision-making authority concerning the children's welfare, education, medical, and mental health issues, except in the event of an emergency.

Ms. H., indeed, elected not to relocate to New York.

During the year and a half the appeal was going on, the mother had filed another petition. This time the mother charged that the father had violated Judge Singer’s order by failing to obtain her consent to a medical decision concerning their daughter. Judge Singer, on July 15, 2009, dismissed that violation petition, finding that the violation was not willful.

In its January, 2010 review of the 2008 initial order, the Appellate Division, Second Department, in Y. v. Y., determined that although it was not “an ideal situation,” Judge Singer nevertheless had a sound and substantial basis to fashion the result he did. Judge Singer’s plan, the appellate court ruled, was designed to promote the best interests of the children. The mother was the parent more capable of making appropriate decisions concerning the children's education and mental and physical health needs; she was the more active advocate for the children. However, because Ms. H. did not establish by a preponderance of the evidence that it was in the best interests of the children to relocate to South Carolina, it was appropriate to condition the award  to her of sole custody upon her relocating to New York.

With Ms. H. failing to return to New York, Mr. Y. ended up with physical custody. Ms. H. retained final decision-making authority as to the children’s welfare, education, medical, and mental health issues, except in emergencies. The Second Department declined to disturb this arrangement.  Although it was inconvenient for the adults involved, the arrangement was in the best interests of the children.

Three months after the January, 2010 appellate decision approving the 2008 arrangement, the mother filed a petition to modify that arrangement. She again sought sole legal and residential custody. She alleged, as a change in circumstances, that the children were performing poorly in school and had been suspended from school for behavioral issues. The mother further argued that the emotional health of the children was deteriorating in the father's custody, and she submitted, inter alia, reports of evaluations of the children, which concluded that the children had psychological issues.

The attorney for the children moved to dismiss the modification petition.  The father supported that motion, submitting copies of the children's most recent report cards which established that, in fact, the children were doing fairly well in school. In his order dated August 4, 2010, Family Court Judge Singer dismissed the mother's petition, without a hearing.

On November 16, 2010, in H. v. Y., the Second Department affirmed Judge Singer’s July, 2009 dismissal of the mother’s violation petition addressing the father's health care decision. The appellate court ruled that the dismissal for lack of willfulness was a proper exercise of discretion under the circumstances.

In its decision a year later on November 9, 2011, the Second Department affirmed the August, 2010 dismissal of the mother’s modification petition without a hearing. Generally, to modify an existing custody arrangement, there must be a showing of a change in circumstances that requires modification to protect the best interests of the children. A noncustodial parent seeking a change in custody is not automatically entitled to a hearing, but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing.

Here, the appellate court agreed with Judge Singer that Ms. H. had not made the evidentiary showing of a change in circumstances sufficient to warrant a hearing.

[T]o the extent that the children may have had some behavioral problems at school and psychological issues, we agree with the Family Court that this was not a change in circumstances, . . . While the children's in-school suspensions for serious incidents involving threatening violence was new, we agree with the Family Court that these incidents were simply recent manifestations of problems that had existed at the time of the original custody trial, and not a change in circumstances.

However, in the meantime, three months after Judge Singer dismissed Ms. H.'s modification petition, Ms. H. in November, 2010 filed two new petitions. The first again charged the father with violations of Judge Singer’s 2008 order: the father had failed to consult her about a change in the dosage of their daughter's medication and administered the changed dosage over the mother's objection

The second November, 2010 petition again sought sole custody. As a change in circumstances warranting a change to sole custody, Ms. H. alleged that their daughter had been hospitalized in a psychiatric ward for suicidal ideation, and their son had been cutting himself and had not been attending therapy on a regular basis. These allegations were not disputed by the father.

Family Court Judge Julianne Eisman acted quickly; dismissing both petitions November 18, 2010 without a hearing.

In its November 9, 2011 decision, the Appellate Division determined that such dismissal was error. The Second Department held Ms. H. had established her entitlement to hearings on both the violation and the modification 2010 petitions. Thus, her November, 2010 petitions were reinstated.  New determinations will have to be made. A hearing will have to be held.

On October 25, 2011, coincidentally, I represented a father before Judge Eisman on a custody matter. I learned her hearing calendar is booked until August, 2012. Sometime in 2013 the Y.-family children may learn the results on the expected appeal from any decision resulting from the now-ordered hearing.

When they reach 18, the children will “age out” of the system.

From my ivory tower, it's easy to take a shot at mom. If your daughter is suicidal, perhaps you should live up to your obligation to your children and return to New York. It's easy to take a shot at dad. Just how inappropriate must dad be, if Judge Singer won't allow him to make non-emergency health care and education decisions for the children who live with him. How selfish must dad be to so jeopardize his children's mental health, rather then let them move to South Carolina to be with their mother.

The Court has made a judgment reminiscent of King Solomon: they have repeatedly decided to split each baby. Every time, however, neither parent failed to step up to truly protect their children.

But I am in no possession to judge. I know that.

Perhaps Judge Singer could have appointed a Parenting Coordinator to help the father make the decisions to which he was not alone able.

The legal system needs help to protect our weakest citizens. It cannot take a year to try a custody case. It cannot take a year for appellate review.

If the Legislature is not going to help our courts . . . if the proper resources are not going to be allocated, then the courts have to waive the white flag. It is time to allow other appropriately trained professionals to make binding decisions. As will be discussed in a future blog, that’s allowed in New Jersey.

The cure cannot remain worse than the disease.

Professor Andrew Schepard of the Hofstra University School of Law in his  article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”

In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.

New York’s 8^th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:

Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children's needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.

The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.

New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.

New York’s judiciary securely guards its exclusive power to make custody and visitation decisions.  Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:

Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.

In his 2005 decision in LS v. LF, 10 Misc3d 714, 803 N.Y.S.2d 881, Kings County Supreme Court Justice Jeffrey S. Sunshine appointed a Parenting Coordinator to assist a father to re-establish visitation with his 12-year old daughter. According to Justice Sunshine, the actions of both parents caused the child’s reluctance to visit the father. The case “brings forth the constraints that courts have in a modern society to be involved in the day to day disputes of parents . . . .” Justice Sunshine viewed the Parent Coordinator as the neutral individual who could verify that the child understands the importance of visitation, that limits and plans for the visitations are discussed by the parents and that the efficacy of plans or alternative plans are coordinated. The Coordinator can act as a go between the parents and child to assure that there are open lines of communication and assist the parties in establishing regular visitation with the child.

Justice Sunshine also may view the Parent Coordinator as the court’s eyes and ears in future litigation: “The Parent Coordinator can be an accurate reporter of events leading up to visitations, plans and hopefully successful visits.”

In D.Z. v. C.P., 856 N.Y.S.2d 497 (2007), Queens County Supreme Court Justice Jeffrey D. Lebowitz appointed a psychologist as Parent Coordinator, but only after giving the mother final decision-making authority on health issues, and the father final decision-making authority on education,. The parents were directed to meet the Parent Coordinator “with and without their daughter so as to begin a process of learning to allow them to communicate in a manner commensurate with their daughter's best interest and with their obvious intellectual abilities.”

If a Parenting Coordinator can truly eliminate disputes that tax the time, money and emotions of the parties, and the judicial system, such would appear to be a warranted imposition on feuding parents. However, where it has been pre-determined which parent has the final say, the Parenting Coordinator may only serve to waste resources and fuel resentment.

In his 2008 decision in J.J.M. v. M.E.S., 867 N.Y.S.2d 375,  Nassau County Family Court Judge Conrad D. Singer awarded joint "legal" custody to the unmarried parents. The parents were directed to endeavor to reach joint decision regarding their 14-year old child's major education, health, mental health issues. Where a joint decision is not reached, a Parent Coordinator was to be used, with the cost to be shared equally. However, perhaps defeating the Coordinator's efforts before they started, Judge Singer directed that should the services of the Coordinator still render a joint decision unreachable, the mother shall have final decision making power over such education, health and mental health issues.

In E.S. v. R.S.,  873 N.Y.S.2d 233 (2008), Judge Singer, dealt with a custody dispute of the 4-, 6- and 9-year old children of married parents who were living apart. Judge Singer found neither parent unfit and awarded joint custody; Judge Singer not believing that the relationship had broken down to the point where the parties would be unable to communicate meaningfully when it came to making decisions regarding their children. Accordingly, Judge Singer declared that the parents shall share decision-making on all major, non-emergency medical, educational, religious, financial and general welfare decisions, while day-to-day decisions shall be decided by the parent with whom the children are residing at that time.

However, Judge Singer determined that should the parents be unable to reach a joint decision, a Parent Coordinator shall be consulted. The parents were required to meet at least once on each issue with the coordinator before requesting judicial intervention on whatever issues could not be agreed on. No parent was given final decision-making powere, but the father was directed to bear the full cost of the Parent Coordinator.

Placing the expense burden for the Parent Coordinator on only one parent is problematic. To begin, costs should reflect the parents’ respective financial positions. Ragone v. Ragone, 62 A.D.3d 772, 877 N.Y.S.2d 909 (2nd Dept. 2009).

However, in all cases the burden should be shared. Neither parent should have a financial incentive to be “difficult.”

Thus, in Raviv v. Raviv, Nassau County Supreme Court Justice Anthony J. Falanga on a post-divorce application for a change of custody, declined to award sole custody of the children to the mother, but instead appointed a Parenting Coordinator to help the parties meet the cooperation obligation inherent in their joint custody. Justice Falanga directed the father to pay 100% of the Parenting Coordinator's fees. On appeal, the Second Department modified the decision (64 A.D.3d 638, 884 N.Y.S.2d 81 [2009]. The appellate court agreed that the parties needed professional help in overcoming their difficulties, but held that in the absence of any clear indication that one party was more culpable than the other, the parties should share equally in paying the fees of the Parenting Coordinator.

If the court can identify the “more difficult” parent, that parent should bear the higher burden. Thus, in Lew v. Sobel, 46 A.D.3d 893, 849 N.Y..S.2d 586, a 2007 decision of the Appellate Division, Second Department, such was the reasoning behind the court reapportioning the costs for the “therapeutic visitation facilitators,” making the mother bear 75% of the expense.

In NK v. MK, 873 N.Y.S.2d 233, Kings County Supreme Court Justice Jeffrey Sunshine announced he would impose a series of fines upon the mother if she continued to prevent even one visit with the child’s therapist or if she failed to sign a retainer and fully and completely cooperate with the Parent Coordinator.

In D.G. v. S.G., 901 N.Y.S.2d 905, a 2009 decision of Westchester County Family Court Judge Colleen Duffy, it was found that it was appropriate to burden the father with 75% of the entire cost of the Parent Coordinator in light of the father’s conduct. In her 2009 decision in J.H. v. S.P., 901 N.Y.S.2d 907, Judge Duffy ordered the parents to meet at least once on a disputed issue with a Parent Coordinator before requesting any judicial intervention, but hear directed the mother to bear 75% of the cost.

In a painstaking decision made earlier this year, New York County Supreme Court Justice Ellen Gesmer, in M.R. v. A.D., 32 Misc.3d 512, 928 N.Y.S.2d 429, rejected the appointment of a Parenting Coordinator. After a through review of the evidence, and as neither parent was sufficiently better than other parent to warrant an award of sole custody, Justice Gesmer awarded the parents “parallel custody” of their 6-year old son with significant learning disabilities. The father was given primary custody during school year, and the more permissive and disorganized mother would have primary custody during summer and other school breaks.

Justice Gesmer noted that neither parent communicated well with other parent. The court had low expectations of both parents’ abilities to communicate effectively with each other or to make decisions jointly. Therefore, the court refused to direct the parties to use a Parenting Coordinator, mindful that constant consultation is only likely to exacerbate the differences between the parties.

Instead, given that each parent had shown strengths in decision-making for their son in different areas, and in light of the considerable level of acrimony between the parties, Justice Gesmer defined subject areas, or “spheres,” in which each party would be the final decision maker. The father was given decision-making authority in education and medical areas; the mother in the choice of summer camp or activity, extracurricular activities, and religion. For any major decision, the parent to make the decision would have to advise the other of an approaching decision, the time frame in which it must be decided, and the parent’s proposed decision. The other parent would be given the opportunity to comment and provide alternatives. However, the decision of the designated parent would be final.

To make its way through to decision, a custody dispute may involve the efforts of the parents, their attorneys, the attorney appointed for the child(ren), a potential forensic evaluation by a mental health professional, a probation department evaluation, consultation(s) with court-staff social workers, participation in P.E.A.C.E or other parent-education programs, and interview(s) by the judge with the child(ren). It is emotionally-charged and time-consuming. Indeed, the issues and facts may change over the years that it may takes before a decision is reached. The dispute itself may do more damage than an award to either parent.

After all of this, appointing a Parenting Coordinator to enhance the parties’ ability to communicate may be far too little and way too late.