Complaining too much about visitation violations may just cause you to lose joint custody. Such may be the lesson to be learned from the September 19, 2013 decision of the Third Department in Green v. Green.
The parties were the parents of a son born in 2004 and a daughter born in 2008. Pursuant to a prior order of the Family Court, the parents shared joint custody of their children, with the mother having primary physical custody.
Within days of the entry of that prior Family Court custody order, the father filed the first of six petitions alleging that the mother was in violation of the custody order. The five other violation petitions were filed over the next several months. The father also filed a petition seeking modification of the prior custody order.
Following a hearing, Judge Dennis K. McDermott of the Madision County Family Court found that there had not been a change in circumstances warranting modification of physical custody. However, because the acrimonious relationship of the parties rendered joint legal custody inappropriate, Judge McDermott awarded sole legal custody to the mother. Judge McDermott also made certain adjustments to the visitation schedule.
On appeal, the Third Department accorded Judge McDermott’s factual findings appropriate deference. The appellate court found no error in the determination that the father failed to establish a change in circumstances sufficient to warrant a change in physical custody.
Moreover, the Third Department found awarding sole legal custody to the mother was appropriate:
[B]ased upon this record, it is evident that the parties are unable to effectively communicate and cooperate with one another. Therefore, upon consideration of all of the circumstances, we conclude that Family Court properly amended the prior order to award sole legal custody to the mother.
Finally, the Third Department found that the adjustments made to the visitation schedule were supported by the record.
Comment: Credibility is greatly affected by demeanor. I am sure both parties in the above case perceived the righteousness of their own positions. However, the manner in which one parent handles perceived violations by the other parent and then how that parent approaches the court are critical to ultimate determinations. No court likes to see a parent crying to it every single time there is a perceived violation. Good faith, maturity, patience and reasonable efforts must be shown.
Many recent decisions have shown the courts’ sensitivity to each parent’s responsibility to foster the relationship between the children and the other parent. However, it is also clear that each parent must meet the other at least part way.
In this case, Theodore W. Stenuf, of Minoa, represented the father. Mark A. Schaeber, of Liverpool, served as Attorney for the Children.