Published on:

Mother’s Failure to Appear Results in Custody being Awarded to the Father


A couple entered into a stipulation after their divorce. As per the terms, the mother had the sole custody of their two children and the father had certain rights of visitation. A New York Family Lawyer said tne provision was that the mother could not relocate outside of a fifty mile radius with the children. Subsequently, each party became involved with other long-term partners and each has had other children. Each family unit lived in various areas over the years until the mother moved to Pennsylvania.

The father then filed a petition for child custody. Despite being properly served with the petition, the mother did not appear in court for over three court appearances. A New York Custody Lawyer said in the fourth court appearance, the mother did appear in court in the morning, but then did not return to court in the afternoon. The mother claims her legal aid attorney informed her she could go home. As a result of her failure to return to court and the inability of the court to reach her by telephone, the judge transferred the custody of the children to the father. The father made arrangements for the order to be imposed in Pennsylvania, and on the next day, he obtained physical custody of the children in Pennsylvania and brought them to his home in New York. The children then lived with the father since that time.

During the trial each party called three witnesses. A Westchester County Family Lawyer said the father testified briefly about the terms of their divorce and about the mother’s multiple residences since then. According to the father’s testimony, the mother moved from one place to another before relocating to Pennsylvania. The transfer took place within a four year period of time. He testified he was given no advance notice of the said relocation to Pennsylvania which was over one hundred and forty miles from his home. The father further denies that he allowed the transfer. The mother then confirmed that she did not seek court’s approval about the relocation.

After the filing of the father’s custody petition, the mother did not show up for three court appearances. She then appeared on the fourth date but left in the afternoon. The father gave the court the mother’s cell phone number but the mother’s phone either was not on or she was not answering it. As a result, the judge then issued a temporary order of custody in favor of the father, which he brought to Pennsylvania and, with the assistance of the sheriffs there, obtained physical custody of his children.

A Westchester County Custody Lawyer said sources revealed that after the children arrived into their father’s home the father enrolled them in school and purchased new wardrobes. The father testified that the mother obtained visitation, but despite there being no provision for telephone contact, he allowed telephone contact anyway. However, the telephone conversations would often upset the children, so the father would listen in and also record the conversations. The father claims that he informed his former wife that she was being recorded and asked her not to discuss the litigation with the children. The children were brought to a therapist and a physician for evaluation.

On cross examination, the father testified he paid the physician five thousand dollars for services including the possibility of testifying in court. Under the original divorce condition, the father’s visitation was twice weekly for a few hours each night. He did not have weekend, summer or vacation visitation at that time. At one time he brought an appeal for the said matter when the mother moved initially. The mother did not inform the father of where she was living and he went a period of time without seeing the children. The father however testified that his former wife has always been a very good parent, a very loving parent and the children love her very much.

The father also acknowledged that prior to the move to Pennsylvania; he had no complaints at all with the mother’s parenting. He just wanted an expanded relationship with the children.

Based on records, the court had the opportunity to observe the father under direct and cross examinations, as well as during the course of the trial. The court found that his testimony was credible and forthcoming.

On direct examination, the mother’s new partner testified that they purchased the Pennsylvania house. Despite the fact that the deed and mortgage are in the mother’s name, the mother’s partner said that he paid the down payment. He also described his employment as vice president of sales for a specific company. He stated that they never married, by choice. But, they have lived together for about four years. He also denied having an argument with the mother where he drove up to him, slammed on the brakes and demanded child support money. There was also an incident in a doctor’s office where he became upset but he did not raise his voice or get into anyone’s face. He also acknowledges becoming loud with the law guardian in the case, but not abusive. Further, he acknowledged calling the mother’s former husband’s a bad person and leaving a message on an answering machine warning the children not to let their father give them drugs. He told others, but not the children, he is a better father than the mother’s former husband.

As a result, the court found the mother’s new partner to be of questionable credibility. The court believes that the man was untruthful on a number of occasions. He was evasive, belligerent and rude. Despite repeated directives to listen to, and only answer the question asked, the man continued to give non-responsive answers, instead choosing to state things he wanted say. His testimony spanned three court dates and despite being told on each court date repeatedly to confine his answers to the questions asked, he refused.

The mother testified and asserted that she moved to Pennsylvania because she wanted to provide all her children with a better quality of life. She wanted to give them their own rooms, make sure the schools system was full of activities and programs, and make sure they had a yard and just a beautiful community where they could have friends.

The court then performed two in camera interviews of the two children. The children were more expressive in the first interview than in the second. But, their statements in the second interview were more negative.

The court finds that the children have a good relationship with both parents and believes that the relocation will impact on the relationship with whoever the non-custodial parent will be. Evidently, there can be no midweek visits with a distance exceeding a two-plus hour drive between the two residences. However, as the court cannot force the return of a parent to the county or its surrounding area, it will be made up through the parenting schedule. Due to the court’s belief that relocation will effect the non-custodial parent’s relationship with the children regardless of whoever that is, that particular factor did not influence or dissuade the court to rule in favor of either party.

In view of the said testimony, the court finds that it would be in the children’s best interests that the father will have the sole custody of them. The court also stated that the father shall consult with the mother on all major decisions regarding health, education and general welfare. The parents should work together to reach consensus on the said decisions, however if they cannot, the father shall have final decision-making power.

The court further asserts that the mother shall have parenting time on alternate weekends on the same schedule they are currently using. The same pick up and drop off arrangements shall continue, with the parties meeting area. If the children are in a school district with three breaks during the year, then the mother will have the children on two of the three breaks each year. The parties will also alternate the Christmas break. The children will stay with the father from the end of school until July first. The children will go to the mother from July first until July twenty first. The children will stay with the father from July twenty-first until August first. The children will then go to the mother on August first until one week before school starts.

The parties will also alternate all other major holidays. The mother shall have mother’s day each year and the father shall have father’s day each year. To avoid the children being forced to spend even more time in the car going back and forth, if mother’s day falls on the father’s weekend, then that weekend will become the mother’s weekend and alternating will continue from there. While it may result in the mother getting two weekends in a row, the same rule will apply to the father’s day with the father getting that weekend even if it falls on the mother’s weekend. If the children’s birthdays fall midweek, the mother may have dinner with them, from 6:00 p.m. to 8:00 p.m. on the birthday, if she drives to the father’s home to pick them up. If the children’s birthday falls on a weekend, then the regular weekend schedule will apply.

With regards to the child custody and parenting terms, the court has tried to take into consideration the children’s spending hours in the car driving back and forth, and attempted to limit that to the extent possible. The court further stated that the mother might choose to move closer, or within a fifty mile radius to the father’s home and the court is open to reconsidering the arrangements.

The court further stated that each parent shall allow the other parent liberal and unhampered phone contact with the children. Neither parent shall speak negatively about the other to the children, nor shall they do so in the children’s presence. Each parent will ensure that no other person speaks negatively of the other parent to the children. The court will view a violation of the said provision very seriously.

Lastly, the father shall have physical possession of the children’s passports, if it’s exist. Should either parent travel with the children outside the state of their residence, they must provide the other parent with the address of where he or she will be staying and phone numbers to be used only in the case of emergency. Each parent may travel internationally with the children, but the other parent must be given a minimum of one month notice, in writing, of any travel. If the mother needs the children’s passports and something in writing from the father allowing her to so travel, he shall so provide.

As a result, the court ordered that the father shall have sole legal and residential custody of his children and the mother shall have parenting time as described in the court decision.

It is never easy to handle the separation or divorce of a couple who has children. Whenever you and your partner decided for an arrangement with regards you children’s guardianship, you can seek legal assistance from the New York Child Custody Attorney or NY Family Lawyer. However, if you want to seek reconsiderations on your visitation rights, you can hire the New York Visitation Attorneys at Stephen Bilkis and Associates office.

Contact Information