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Court Listens to Child’s Input in Custody Arrangement


A New York Family Lawyer said the former couple entered into a separation agreement by which the child’s custody was placed with the mother subject to visitation by the father. The Inferior Court incorporated the child custody agreement in its decree divorcing the parents at the suit of the mother. At that time the child was four years old.

The Special Term Court transferred child custody from her father to her mother on the basis of opposing affidavits, and on default of the father, but the court’s order was reversed. A New York Child Custody Lawyer said according to the Family Court Act, on a showing to the family court that a change of circumstances subsequent to the entry of an order of judgment by a court of competent jurisdiction not of the state of New York, fixing child custody in an action for divorce, separation or annulment, the family court shall proceed to determine an application to modify the custodial arrangement provided in such order or judgment.

Statutes and decisional law must afford justice to the child as she grows older and her environment and needs may change with the passing years. A Long Island Family Lawyer said to afford less to the child by adhering with rigidity to her custodial status fixed at the age of four, when she is eleven and if her best interests require a change, would be to impair her welfare which is the paramount concern of the decision as to her child custody.

The court made available the investigations of the father’s home by the Family Court Probation Department of that County and of the mother’s home by the Probation staff of the Family Court, in the form of written reports to counsel for each of the parents and to the guardian assigned by the court appointed for the child. By stipulation of all parties, the reports were received in evidence.

All probation reports and the psychologist’s report and opinion were unanimous as to facts and conclusions of fact; the homes of both parents and the objective capabilities of both parents as well as that of the step-mother, constitute wholesome and proper environments for the child. A Long Island Child Custody Lawyer said the child had thrived in both homes after the divorce. If there is any difference, her fine school record in public school until age nine when living with her mother, was slightly improved at parochial school while attending from father’s home until recently. Both parents and the stepmother as well, are of the same religious faith as the child. The father has seen to it that the child was confirmed in her religious faith.

While the mother had the child attending public school and the father had the child attending parochial school until the school year, the situation has now reversed itself in that a parochial school of the child’s faith now offers an opening for her, there as the child has been transferred to public school within a few steps of her home. The change was made by the father recently in order to relieve the child of a lengthy bus ride to and from parochial school. Having experienced both types of schools, the child testified in court that she preferred to stay in the public school. She does very well in all three schools, and would not doubt thrive in her educational program in the parochial school which she has never yet attended.

Separation agreement of seven years ago required parochial schooling, but the mother did not abide by the clause in view of no availability near her home and the father finds it unwise to compel the child to attend any longer such a school at a cost in time of about half an hour each way. Indeed the non-custodial parent has had ample opportunity each weekend, during visitation, to assure religious instruction, and it will continue even though spacing of visitation on alternate weekends seems better to serve the interests of the child. To this visitation plan, all seem to agree.

If the parochial school were the stumbling block to a proper disposition of the child’s custody, the court reviewed a directive or condition addressed to the father to return her to the parochial school, as preferable to transferring the child to the mother for the collateral purpose. The court is disposed to countermand the decision of the custodial parent in the case, since the child’s religious faith is being adequately nurtured.

At nine years old, the child requested her mother to permit her to transfer her residence to the home of her father and stepmother. This the mother voluntarily did, only to discover after some months, that the child refused to return to the weekday custody of her mother. The child has continued to spend weekends with her mother, almost without any break, but no entreaties would persuade her to leave her father and to resume her former home for two years last past.

The child testified in effect that she finds the home of her father more satisfying than that of her mother. The child’s 20-year-old half-brother lives in her mother’s home, but his interests are not those of the child. The child’s three younger half siblings live in her father’s home, and she seems to enjoy the home having the company of children more than that of grown-ups only. She loves both her mother and her father, but is quite angry at both of them for the divorce.

The former couple’s child enjoys the more complete home of a father and stepmother rather than that of a mother without a stepfather. She does not articulate the reason for her preference quite this way, but rather in terms of not wanting to leave her father’s home and in terms of her stepmother as a strict but kindly woman who loves her as much as her mother does and who treats her with the same consideration enjoyed by the stepmother’s natural children.

Whatever her reasons, the child has been vigorously and unwaveringly insistent on maintaining her major custodial status in her father’s home throughout the last two long years. She maintained her views in the face of her mother’s expressed threats never to see her again, and despite a symbolic confrontation on father’s front lawn when mother, piqued, deposited the child’s belongings there because the child refused to return to mother’s home.

The former couple’s child insisted on her right to choose her own home as between two quite adequate parents, during consultation and evaluation and she persisted when on the witness stand in open court. When cross-questioned by her mother’s attorney, she resolutely clung to this right through her own tears.

The psychologist testified repeatedly that the welfare of the child requires avoidance of compulsion in changing her residence against her wishes. It is not the same, as the mother’s attorney contends, to giving an 11-year-old child the controlling power in choosing her custodial home. If the child is to return to her mother, then this must be the consequence of a voluntary decision that the child makes. In discussing the situation with the mother, the psychologist did indicate to her that her relationship with her daughter would be enhanced not by her attempting to terminate contact with her child when the child wants to contact with her.

The child visitation with her mother shall be limited to alternate weekends from Friday evening to Sunday evening. Holidays shall be alternated or divided, as the child prefers. On the child’s birthday she shall spend part of the day with each parent if feasible. The mother may have a summer vacation with the child of one week at the mutual convenience of child and mother. Additional child visitation may be mutually agreeable to both parents and may be scheduled. Transportation to the mother is to be arranged by her and to the father by him.

Though periodic review of the award of child custody might appear theoretically advisable, the continuing pressure on the child from the mother would create insecurity if court hearings were to resume without leave of a judge of the court. Moreover, the obvious flexibility of the father, should the child change her preference, would very probably lead to a voluntary transfer from father to mother without any change in the order except perhaps on stipulation.

Some children feel more loved by one parent than the other. If your child prefers to be with you rather than with his other parent after a separation, approach the Nassau County Child Custody Lawyer together with the Nassau County Child Visitation Attorney from Stephen Bilkis and Associates. You can also ask for the representation of the Nassau County Family Attorney in your family related legal dispute.

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