Family court judges charged with deciding child custody cases weigh a long list of factors, but they will hold this above all others: The best interests of the child.
This standard can be used to trump everything else, even what might otherwise be considered fairer for the parents.
Brooklyn child custody lawyers note this is why we often remind our clients that, barring situations of domestic violence or other abuse, maintaining cordial relations with your ex can benefit you in these proceedings. Judges know that when two parents are warring, this is not in the best interest of the child. If one parent can show at least a valid effort to maintain peace and help foster a good relationship between the child and the other parent, the judge will take note.
Even when there are valid concerns regarding the care provided by the other parent, these must be approached delicately in court.
The recent case of James R. v. Kylie R., reviewed by the Alaska Supreme Court, reveals how, even when all other things are equal, cordial relations with your ex can make the difference. Although this is an out-of-state case, and family law statutes do vary from state-to-state, the same principles remain valid for New Yorkers.
In this case, two parents of a daughter shared joint custody following their divorce. This means they both shared equal parenting time with the child. However, the father then announced plans to relocate out-of-state, both parents sought physical custody.
The superior court determined that all other factors were essentially equal, but that the mother was "more likely than the father to facilitate a close and continuing relationship between the other parent and the child."
The father appealed the decision, holding that the superior court failed by not finding that he had a superior capability to meet the child's needs, and further that the court had used his expression of concerns about the mother's parenting skills to determine that he would be less likely to facilitate a good relationship with the mother.
The state supreme court in this case affirmed the decision of the lower court, finding no abuse of the trial court's discretion.
The father had been deployed to Afghanistan when the mother announced she was filing divorce and moving out of the marital home with her infant daughter. The soldier was granted early leave to return home and deal with his family situation.
Both parents filed for physical custody of the little girl. Over the course of the proceedings, the parents filed a total of five petitions for domestic violence protection orders against one another. The court eventually granted one of those orders, on the basis of an allegation that the mother had taken the child from the father's residence in the midst of a fight and placed her in the back seat of a car without an appropriate winter coat or other apparel.
Later, the court granted interim joint custody of the little girl, with each spending two days on, two days off.
But then it was announced that the father planned to relocate to North Carolina, to be closer to his family and also to begin his nursing school studies.
At this time, the mother's attorney presented information relating to disciplinary issues the father had during his time in the Army (including those involving substance abuse), as well as indications that he had violated the interim custody arrangement on several occasions.
The court determined that both parents had equal capabilities to meet the child's emotional and physical needs. Had the parents been living in the same state, the court indicated, it would have ordered shared parenting. However, the father's plans for relocation forced the court to make a determination on primary physical custody. What it ultimately came down to was which parent was more likely to encourage a strong relationship between the child and the other parent.
The court touched on the fact that the father "had a poor opinion" of his daughter's mother. The judge wrote that it was not enough for the father to say that he would allow the child to see her mother. Rather, "It involves telling the kids that their mom or dad is a good person, that their mom or dad should be encouraged to have contact with the child."
In this case, the judge noted the father throughout the proceedings had called the mother a "stripper" a "slut," "neglectful" and a "drug addict." He then turned around and told the court that he would gladly allow the mother to have a relationship with the daughter if he moved thousands of miles away.
"I frankly don't believe it," the judge said.
Call the Law Office of George M. Gilmer at at (718) 864-2011.