Two decisions this past month involved joint custody awards despite antagonism between the parents and contested custody proceedings.

In Prohaszka v. Prohaszka, Supreme Court Putnam County Justice Francis A. Nicolai had awarded the divorcing parties joint legal custody of the parties’ children, with the mother having primary physical custody and final decision-making authority. In its February 6, 2013 decision on appeal, the Second Department modified that order to add a provision directing the mother to consult with the father regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority for the children, but otherwise affirmed Justice Nicolai’s order.

Although the antagonism between the parties was evident to the appellate court, it was also apparent that both parties generally behaved appropriately with their children, that they could make parenting decisions together, and that the children were attached to both parents. Under those circumstances, there was a sound and substantial basis in the record for Justice Nicolai to have found that the best interests of the children would be served by awarding the parties joint custody. Similarly, the trial record also supported the determination that primary physical custody should be with the mother and that she should have final decision-making authority.

The court, however, should have directed the plaintiff to consult with the defendant regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority.

In his January 8, 2013 decision in Scott M. v. Ilona M., Kings County Supreme Court Justice Jeffrey S. Sunshine awarded the parties joint custody of their son; each parent having access alternating on a weekly basis.

Justice Sunshine did note that a significant factor in determining custody was whether the heated custody dispute, itself, indicated that an award of joint custody would be ineffective. Justice Sunshine cited to the Court of Appeals decision in Braiman v. Braiman, (44 N.Y.2d 584), which rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. That decision concluded:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.

[Question: If the children live primarily with one parent and that parent has final decision-making authority, what does "joint custody" mean? Is it merely a psychological benefit for the parent and the child? Does it entitle the non-primary custodian to make decisions in emergency situations when the other parent is not available? Braiman, itself, noted that “joint”, or, as it is sometimes called “divided”, custody reposes in both parents a shared responsibility for and control of a child's upbringing. In Bast v. Rossoff, 167 Misc.2d 749, 752 (Sup. Ct. 1995), affd, 239 A.D.2d 106 (1st Dept 1997), affd as mod and remanded, 91 N.Y.2d 723 (1998), it was stated “In New York the term 'joint custody' generally is used to refer only to joint legal custody, or joint decision making.”]

Justice Sunshine noted that in the case before him, the parents were not engaged in a “vicious custody battle.” He awarded the parties both joint legal custody and shared decision-making to parents who, despite their antagonism towards each other, were able to co-parent their child.

In that case, the parties were introduced to one another through a dating agency. The father traveled to Russia in 1999 to meet the mother and the couple married in 2000. They had one child, a son, born in September, 2007.

The father sought sole custody of the child. The mother sought joint custody or, alternatively, sole custody. The father raised the mother’s drug use (ecstacy) from 2008 through 2010, the mother’s alleged “unilateral parenting style,” and his own flexible work schedule as basis for him to be awarded sole custody. He testified that there were numerous weekends during this period wherein the mother abandoned the family to stay out late and attend parties where she used ecstacy.

The mother expressed that she has improved her life. She denied that she used the drug for over more than 1-year period, but also that she had confronted her drug use following the couple’s separation. She completed a 10-month drug treatment program while consistently testing negative for drug and alcohol use. The mother also referenced to support her desire for joint custody the parties’ effective cooperation in raising the child and the child’s positive adjustment to the equal access schedule ordered while the divorce action was pending.

The father, a vice president of a major financial institution, testified that his work schedule was flexible, allowing him to be home with the child when he had visitation. The mother worked as a fashion production coordinator, Monday through Friday, from the morning until 7:00 p.m. When the mother was not at home and the child not in daycare, the maternal grandmother was the child’s caretaker.

The father was concerned that the mother makes unilateral decisions for the child, and that the mother would not provide him proper access to his child. The mother contended that the father’s claims were inaccurate, revealing that his true motive for the custody dispute was to evade payment of full child support. (Justice Sunshine noted that even with an equal arrangement, the father would be deemed to be the non-custodial parent for child support purposes due to his superior economic position.)

Justice Sunshine also noted that cross-examination had minimized the allegations of the mother’s misconduct. He also noted that neither party could identify a specific decision relating to the child upon which the parents could not ultimately come to an agreement during the past year and a half of the temporary joint custody arrangement. In fact, the parents were able to share vacation and holiday time and times together with the child.

Of particular significance to Justice Sunshine was the parents’ collaboration on educational matters for the child. Both parents participated in the selection of the child’s new pre-K program. Together the parents toured the school and thereafter agreed it would be a suitable choice for their child. Both the mother and the father worked cooperatively again in 2012 when choosing a kindergarten for the child. Together, the parents visited a number of schools, considered their options, and then agreed on sending their child to a particular public school. Furthermore, the parties agreed on the child’s participation in enrichment programs and on how to equally divide the child’s vacation and holiday time. The parties were also able to agree on a schedule which allowed the child to visit his father’s family in another state.

The Attorney for the Child advocated that the child was interested in maintaining the current joint custody arrangement as he was familiar with the schedule and it gaves the child substantial access to each parent.

The forensic evaluator, Dr. Naftali Garcia Berrill of the The New York Center for Neuropsychology & Forensic Behavioral Science (New York Forensic), concluded that if both parties continue to quarrel over the custody issue, then custody should be awarded to the father. Dr. Berrill explained that although the mother is no longer using ecstacy, she remains somewhat superficial and even manipulative when it comes to her participation in casual drug use. Dr. Berrill also stated that it is important for the mother to gain a better understanding of her substance abuse problem because if she fails to do so, she could endanger the child.

The mother argued that Dr. Berrill’s conclusion that the father should have sole custody if the parents could not agree was made before the mother completed a drug treatment program, obtained a new job, and jointly made major educational decisions for the child. The mother contended that if Dr. Berrill had that information, he probably would have reached a different conclusion.

Justice Sunshine recognized that both parties brought different strengths and weaknesses to the present parenting arrangement; that both parents, to their credit, testified that they believed it is in the child’s best interest to have full access to the other parent. Both parents provided quality home environments for the child. The parents’ ability to work together to equally share the child’s time revealed that neither parent was trying to impede upon the other’s access to the child. Both parents played active, positive roles in the child’s intellectual and emotional development.

It is clear to this court that as the parties marriage disintegrated they both acted in an inappropriate manner. To both of their credit, they have risen above their disagreements and have conducted themselves in a responsible manner and as two loving parents. Joint custody is feasible in this case, since the parties communicate and work together in parenting the child.

To both parents’ credit, Justice Sunshine noted, they have risen above their disagreements and have conducted themselves in a responsible manner and as two loving parents.

Distinguishing Braiman, above, Justice Sunshine held that joint custody was feasible in this case, since the parties communicate and work together in parenting the child. They showed an ability to cooperate on matters concerning the child.

Nonetheless, while ordering joint custody, the court cautioned the parties that:

a parent should not attempt to create friction or disagreement in order to seek modification of the joint custody decision. If it can be determined that a party intentionally creates situations to interfere with joint custody continuously, it could negatively impact on any future custody determinations.

In Prohaszka, Helene M. Selznick, of Somers, N.Y., represented the father; Carl F. Lodes, of Carmel, represented the child; and Lois M. Dieter, of Somers, was the attorney for the children.

In Scott M., Joseph Soffey, of Garden City, represented the father; Warren Stone, of Manhattan, represented the mother; and Elaine McKnight, of Brooklyn, was Attorney for the Child.