tugging child.jpgIn fact, we may have all failed the Y. family children (name deleted at the request of the family). Their parents have spent the last four years fighting in court. Their custody litigation will likely last at least another two years.

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.

The father and the independent attorney for the children took an appeal from Judge Singer’s June 23, 2008 order. However, that appeal was not decided until January, 2010.

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.