Custody and Visitation

On August 30th, the state’s highest court overruled its prior holdings and expanded the definition of parent to grant a standing to seek custody to a domestic partner who agreed with the biological parent to the conception of a child and the raising of the child together. That decision in Matter of Brooke S.B. v Elizabeth A.C.C. was quickly followed by the decision of the Appellate Division, Second Department in Matter of Frank G. v Renee P.-F. 

In the September 6th decision of the Second Department, Joseph and Frank were domestic partners who lived together for some five years. Together they asked Joseph’s sister, Renee, to act as a surrogate and give birth to the child resulting from Renee’s being impregnated with Frank’s sperm. The surrogacy contract contemplated that Renee would surrender her parental rights in order for Joseph to adopt the child. The understanding contemplated that Renee would remain a part of the child’s life.


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Contested litigation is remarkably unsuited for healing a divorced family. One gets a sense of the feelings of frustration, if not helplessness a Family Court Judge may feel as she tries to figure out “what do we do next?” What remedy should be ordered that will actually strengthen the bonds between parent and children?

Consider the July 1, 2016 decision of Erie County Family Court Judge Mary G. Carney in Matter of Gregory S. v. Dana K. Judge Carney was charged with resolving the claims of a father, rejected by his four children in substantial part due to the mother’s willful violations of visitation orders.

Judge Carney noted that the family’s history was branded by protracted, caustic litigation, toxic interpersonal conflict and all categories of broken hearts.


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To help ensure that parents take responsibility for their post-divorce conduct, they should equally share the costs of a parenting coordinator appointed to help implement the custody and visitation provisions of a divorce judgment.

So held the Appellate Division, Second Department, in its May 11, 2016 decision in Headley v. Headley, when it affirmed Queens County Supreme Court Justice Lenora Gerald.

The parties were married in 2005, and had one child the following year. The couple was divorced in 2008. The judgment of divorce incorporated, but did not merge a settlement stipulation pursuant to which the parties had agreed to joint legal custody of the child. The mother had residential custody and the father had substantial visitation.

In August 2011, the father filed a petition alleging that the mother violated the stipulation by denying him visits and phone calls with the child. In August 2013, the father moved to modify the judgment of divorce to award him physical custody of the child. A lengthy hearing was held over the course of 10 hearing dates. Justice Gerald heard testimony from, among others, the parties, the mother’s new husband, a forensic evaluator, and a court-appointed visitation supervisor.


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Lying childIn his February, 2016 TED talk, developmental researcher Kang Lee tells us that adults cannot tell whether children are lying.

As part of his research, Dr. Lee asked children to guess the numbers on two face-down cards. The children were told that if could do that, they would get a big prize. In the middle of the game with a child, the monitor leaves the room, telling the child not to peek at the cards. Hidden cameras record the actions.

More than 90 percent of children will peek as soon as the proctor leaves the room. The more important question for Dr. Lee was when the proctor returned, would the child confess or lie about cheating? By age 4 and up, at least 80% of the children lie.

However, Dr. Lee also wanted to know if we, adults, can tell when a child is lying or telling the truth. Dr. Lee played videos of these types of games for many, many adults from all walks of life. In half of the videos, the children lied. In the other half of the videos, the children told the truth. Recognizing that if the adults guessed randomly, there would be a 50% chance of them being right, an adult whose accuracy was around 50% was a terrible detector of children’s lies.

Spoiler Alert (although the title of this blog post gives it away): Please watch the video before proceeding.


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Children in balanceOn the night of August 24, 2013, the father received an email from the mother stating that she and the children had moved from East Hampton to Westhampton Beach—a distance of about 32 miles. Under their divorce settlement stipulation entered just 3 months earlier, it was agreed that the parties would share joint custody of their two children. The mother was to have residential custody of the children, subject to parenting time by the father from 4:00 p.m. to 6:00 p.m. on Mondays, Tuesdays, and Thursdays, from 4:00 p.m. to 7:30 p.m. on Wednesdays, and on alternate weekends (i.e., on 8 out of 11 days).

In September, 2013, the father moved to enjoin the mother from relocating. At the ensuing hearing, the father testified that he normally works from 8:00 a.m. until 4:00 p.m. on weekdays. He testified that it usually took him about five minutes after finishing work to drive to the former marital residence in East Hampton to pick up the children for visitation. He further testified that it now took him 50 minutes to drive from his home in East Hampton to the mother’s new home in Westhampton Beach.

The mother testified that she moved because she had voluntarily changed jobs from a bank located in Bridgehampton to a bank located in Medford, and that the move cut 30 minutes off her new commute in each direction. She testified that her total compensation at the new job was comparable to her total compensation at her old job. She further testified that she moved to be closer to her parents in Riverhead. She testified that the children saw her parents about twice a month when they lived in the former marital residence in East Hampton, and about once a week after the move to Westhampton Beach.

Sufflok County Supreme Court Justice Stephen M. Behar granted the father’s motion to enjoin the mother’s relocation. The mother appealed.


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The father petitioned the Family Court for enforcement of his rights to visit with his 13-year old son. Alternatively, the father asked to suspend his child support obligation. Instead, Westchester County Family Court Judge Hal B. Greenwald granted the mother’s cross petition to modify the prior order of custody and visitation and suspended the father’s

Sentencing a father (a police officer) to 15 days in jail for sending abusive e-mails to the mother, Supreme Court, Putnam County Justice Victor G. Grossman attempted to stop the war between divorcing parents.

Charging the parties with acting more like children, throwing tantrums, teasing and name-calling, Justice Grossman, in his decision in L.T. v. K.T.  noted that both parents behaved like preschoolers. Unfortunately, the Court could send the parties to their rooms. The parties’ three children have two parents whose embarrassing behavior has set a horrible example. the behavior of both parties was “all the more disappointing when one considers the parties should know better.” The father was a police officer, who had been trained to defuse difficult situations. The mother had a Master’s Degree in Psychology. Thankfully, the children had multiple outlets where they can see responsible adult behavior.

The Court also blamed the lawyers, observing “how counsel for each of the parties has personalized the conflict to the point where they are incapable of communicating effectively beyond a litigating posture, to promote their clients’ interests.”


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Difficult choiceA recent Swedish study based on a survey of almost 150,000 6th and 9th-grade students revealed that children who live equally with both parents after parental separation suffered from fewer psychosomatic problems than those living mostly or only with one parent. As might be expected, children of separated parents generally reported more psychosomatic problems than those in intact “nuclear” families.

A group of Swedish university and government child experts published their results online April 28, 2015 in the Journal of Epidemiology & Community Health in the article, Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children?

Using responses along the range of “never,” “ seldom,” “sometimes,” “often” and “always,” the survey investigated correlations between parenting arrangements and “psychosomatic” problems including difficulties in (1) concentration and (2) sleeping; suffering from (3) headaches and (4) stomach aches; feeling (5) tense, (6) sad and (7) dizzy and (8) loss of appetite. The students were asked to respond to the survey questions with

The authors noted that during the past 20 years, it has become more common for children in the Western world to live alternatively and equally with both parents after a parental separation. In Sweden, this practice of joint physical custody is particularly frequent and has risen from about 1–2% in the mid-1980s to between 30% and 40% of the children with separated parents in 2010.

Over the same period, however, there has been an increase in self-reported pediatric psychosomatic symptoms. Already, stressful circumstances such as bullying, economic stress in the family, peer and teacher relationships, schoolwork pressure and lack of emotional support from the parents have been shown to be related to psychosomatic symptoms in Swedish adolescents.


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