New York Divorce Law...

New York Law - Who Gets Custody?

The judge tries to figure out what custody arrangement is in the best interest of the child.

Neither parent is presumed better for the child.

Similarly, the court views joint custody neutrally, searching in general for the best environment for the child.

The court will also consider domestic violence as a factor in granting or denying custody.

Section 70, 240(1).

Cases:

Brodsky (1999 N.Y. Slip Op. 11167, Supreme Court, Appellate Division, Third Department, New York, decided Dec. 30, 1999).

In this New York case, the parties separated before they divorced. In the separation order, in 1994, the mother had been granted custody.

Apparently, part of the reason the mother had been granted custody was that she claimed that the father had been lying naked in bed with a daughter for years.

Although the case does not give the age of the daughter, the parties had been married in 1979, so the daughter could be as old as 14 years old by 1994, or she could be younger. (The daughter could be older if she had been born before the marriage, but cases typically mention facts like that. So we assume the daughter was born during the marriage.)

There was no ultimate legal determination of whether the claimed activity between father and daughter had actually happened, but the court's language in the case seems to imply that it had, in fact, been going on.

In the 1994 order, the father had been granted liberal, unsupervised visitation. (Perhaps once the parties were out of bed in the morning, there were not further complaints.)

In 1998, the parties filed for divorce. In the divorce order, the judge switched the custody of all five children to the father.

Why would the judge do this?

The appeals court gives several reasons.

First, the mother had prevented the father from exercising his visitation rights. On one occasion, the police had to be called to help the father (it's not clear exactly why).

Second, the mother had disparaged the father to the children.

Third, the mother was becoming impatient and confrontational with the children.

Fourth, the mother had called the police on the older son and accused him of stealing. Her relationship with that child was deteriorating.

Fifth, the court concluded that the mother's original assertion about the father's activities with the daughter was put forth because she wanted to prevent the father from being with the children, and not in order to protect the children's best interest.

Lessons of this case: First, things are not always what they seem. Second, it is very important to be cooperative with visitation arrangements and not disparage the other parent. In this case, the mother's uncooperative attitude apparently was a significant part of the reason the court took custody away from her and gave it to her husband.

Linda R. vs. Richard E (1990) 561 NYS2d 29 (A mother who works should be treated by the courts the same as a father who works. A mother's relationship with another man should bear on a custody decision only to the extent the children are affected. Mothers and fathers should not be held to different moral, behavioral, or sexual standards.)

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