Custody and Visitation

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Children in families without fathers in the home are not doomed to failure, or anything close to that. So concludes an article in Scientific American Mind, “Where’s Dad,” by Paul Raeburn of the Knight Science Journalism Tracker, and author of Do Fathers Matter?: What Science Is Telling Us About the Parent We’ve Overlooked.

However, as the article also noted, “The discovery of the father is one of the most important developments in the study of children and families. Our failure to address the question of fathers’ value is more than simply a matter of academic bickering.”

Fathers make unique contributions to their children. “Fatherhood is about helping children become happy and healthy adults, at ease in the world, and prepared to become fathers (or mothers) themselves.”

Fathers are disappearing: fewer dads are participating in the lives of their children now than at any time since the U.S. began keeping records. This shift matters because the effects of a missing father can be profound . . . .

Mothers today continue to perform the majority of primary caregiving tasks (feeding, bathing, comforting) notes science journalist Roni Jacobsonin her Scientific American Mind article, “Build Your Own Family.” Fathers tend to take part in supplementary activities, such as play, which matters less to survival than to cognitive development. For that, the quality of a father’s involvement appears to matter more than the quantity.Continue Reading Keeping Dads Around After Divorce

It is common for divorce settlements and custody agreements to contain “relocation clauses.” These provisions spell out the radius within which the residential custodian will be able to move without first seeking judicial approval. It is a proper subject of agreement between parents. It will almost always be honored, although such a provision can never be binding upon a court’s determination of what is in the best interests of a child.

Such a clause might read:

The parents have established their custody and visitation arrangement to reflect what they believe constitutes the best arrangements to meet their child’s needs to have a continuing and close relationship with both parties. The parties recognize that an arrangement that provided for less contact between the child and each of the parties would not be in the child’s best interests. Based upon the foregoing, the residential custodial parent agrees that prior to the emancipation of the child, he/she will not establish a domicile with the child at any point beyond ____________ miles of _______________.

That distance is often referred to as the “radius.” Relocation clauses must be careful to specify whether the radius is in road miles or “as the crow flies” (radial miles).

In actuality, the concept is one of time, not distance. A parenting schedule is constructed assuming that it will take a certain amount of time for the child to be transported from the residence of the physical custodian to that of the other parent. The parents’ agreement should contemplate the distance between homes as it may relate to dropping a child off at school on a Monday morning, allowing for mid-week visits, etc. Thus, a radius clause that allows for 50 road miles near the Thruway in upstate New York contemplates something very different than 50 road miles on Long Island. The latter trip might take twice as long.Continue Reading Relocation Clauses Must Specify Radial or Road Mileage

Two of three November 5, 2014 custody decisions of the Appellate Division, Second Department, reversed Family Court determinations.

In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:

Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.

Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.

In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.Continue Reading Appellate Reversals of Custody Decisions

The Second Department has modified an order of Suffolk County Family Court Attorney-Referee Roseann Orlando to direct that when one parent is working, that parent, prior to making babysitting arrangements with a nonparent, shall first afford the other parent the opportunity to care for the subject child during such work period.

In its August 27,…

When making a decision in custody matters, the primary concern is the best interests of the child. The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor. New York courts will consider religion in a custody dispute when…

The non-biological spouse in a same-sex marriage is a parent of the child under New York law as much as the birth-mother. So held Monroe County Supreme Court Acting Justice Richard A. Dollinger, in his May 7, 2014 opinion in Wendy G-M v. Erin G-M.

The birth mother and her spouse were married in a civil ceremony in Connecticut, before New York enacted its Marriage Equality Act (“MEA”). The couple decided to have a child and in October 2011, they both signed a consent form agreeing to artificial insemination procedures. In the consent form, the birth-mother authorized the physician to perform artificial insemination on her, and the spouse requested the doctor to perform the procedure, declaring “any child or children born as a result of “ pregnancy following artificial insemination shall be accepted as the legal issue of our marriage.”

The document was signed by the birth-mother, the spouse, and the physician, but there was no acknowledgment to the signatures before a notary (as required by D.R.L. §73). Both parties underwent artificial insemination for almost two years, until the procedure succeeded on the birth-mother; the spouse then discontinued her treatments. Both the birth-mother and the spouse were both involved in appointments. The spouse attended the pre-birth classes, including breast feeding, baby care, and CPR classes. The spouse participated in the baby showers. The birth-mother celebrated the impending birth of “our” daughter through a Facebook posting.

The spouse was present at the birth of the child and the couple jointly decided the name of the child. When the hospital officials asked for information on the parents, both participated in the discussions and the birth mother acknowledged that the spouse was the parent of the child. The child was given a hyphenated surname of the two women, with the spouse’s name listed first. The birth certificate for the child lists both as the parents of the child.

After the birth of the child, citing marital trouble, the spouse left the household, in her words, to “not cause undue stress or potential other problems.” The child only lived in the same household with the two women for one week before they established separate households.

The action for divorce was commenced by the birth-mother in December 2013, less than then three months after the birth of the child. Before and after commencement, the birth-mother would not permit her spouse to visit with the child. The spouse then filed the instant request for a variety of relief, including access to the child, maintenance, and attorney fees.

Justice Dollinger was called upon to determine whether the spouse who did not give birth to the child (the non-biological spouse), is a parent of the child under New York’s longstanding presumption that a married couple are both parents of a child born during their marriage.Continue Reading Both Same-Sex Spouses are the Parents of a Child Born During the Marriage

Increasingly, courts have closely examined the specific decision-making roles of each parent, whether or not the parties share joint custody or one parent is awarded sole custody.

The general rule is that joint or shared custody, requiring both parents to agree on decisions, is inappropriate where parents have demonstrated an inability or unwillingness to cooperate…

Five appellate decisions this month have dealt with the propriety of joint custody awards.

On March 20, 2014, the First Department upheld New York County Supreme Court Justice Lori S. Sattler‘s decision to continue the parents’ joint custody arrangement. In Boyce v. Boyce, the appellate court agreed that the mother had failed to make an evidentiary showing sufficient to warrant a hearing on her request to change that arrangement.

For the appellate court, the fact that the parties, who have joint decision-making authority, have different views on education or extracurricular activities did not mean that they could not co-parent. Indeed, the parties had anticipated that they may have these disagreements and provided for a procedure to deal with them in their stipulation of settlement. In the event the procedures failed, as occurred here, the parties reserved their right to resolve such matters in court.

Again supporting joint custody, in Johanys M. v. Eddy A., the First Department on March 11, 2014 reversed the order of Family Court Bronx County Referee Jennifer S. Burtt that had awarded sole custody of a child to the mother.

Referee Burtt had found that the parties had similar abilities to provide for the child financially; that there was no difference in the emotional bonds that they each had established with the child;and that the child had essentially spent an equal amount of time with each party. Nevertheless, the Referee awarded custody to the mother on the grounds that she no longer worked outside the home and thus was “fully available” to care for the child (and a newborn), while the father worked outside the home. The Referee was also concerned about the father’s testimony about the mother because it was “globally negative.”

The First Department, however, found that the it was in the best interests of the child for the parties to have joint legal custody. Although sharing physical custody was no longer feasible because the parties now resided in different boroughs, there was no evidence that the parties’ relationship was characterized by acrimony or mistrust.

Moreover, over the course of the child’s life, the parties had been able to resolve any visitation or custody disputes between themselves. They also appeared to have been in accord with respect to the child’s best interests, despite their failure to communicate directly with each other.

The [father] should not be deprived of a decision-making role in the child’s life because he is unable to care for the child full time. The record shows that he has a strong interest and plays an active role in the child’s life, including aggressively seeking out necessary services to foster the child’s development, and that he arranged for child care while he worked.

Here, although the father’s testimony may have painted an unfairly negative picture of the mother, there was no evidence that he disparaged her in the presence of the child. The record showed that his concern for the child’s welfare was paramount.Continue Reading Joint Custody: This Month’s Five Appellate Decisions