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Where a couple adopted children, the court determined that they would share legal custody. N.K. v. S.R., 2023 N.Y. Slip Op. 23344 (N.Y. Fam. Ct. 2023)


In custody cases, regardless of the parents’ sexual orientation or the children’s adoption status, the paramount concern remains the well-being and best interests of the children involved. While this particular case involves a same-sex couple and adopted children, the fundamental principles guiding the court’s decision-making process are universal. The court must carefully consider various factors, including the children’s emotional and physical health, their relationship with each parent, stability, and the ability of each parent to provide a nurturing and supportive environment. Ultimately, the goal is to ensure that the children are placed in a living arrangement that promotes their overall welfare and development.

Background Facts
S.R. and N.K. married in 2007. The children, SC1 and SC2, are S.R.’s cousin’s biological children, placed in their care as kinship foster parents. They began fostering SC1 in 2009 and SC2 in 2010 in Binghamton, New York.

After the couple split, S.R. moved to Brooklyn while N.K. stayed in Binghamton with the children. Despite the breakup, they adopted the children jointly in 2014. In 2015, N.K. and the children moved to Georgia without informing S.R.

Both parties took turns caring for the children, leading to frequent moves between New York, New Jersey, and Georgia. Following a fire at N.K.’s home in 2016 or 2017, the children stayed with S.R. in New Jersey for two school years. However, an incident in 2017 led to them spending part of the summer in Brooklyn.

In December 2018, S.R. found the children living in poor conditions with N.K. in Georgia and took them to Brooklyn without notifying N.K. The children continued attending school there until 2020. N.K. visited them in Brooklyn but took them back to Georgia without informing S.R.

S.R., now a travel EMT living in Tennessee, filed a Writ of Habeas Corpus in May 2020, seeking the children’s return to New York. Due to the COVID-19 pandemic, the court ordered virtual production of the children but didn’t require their physical return to New York. Both parties later filed for custody.

The trial involved extensive testimony from both parties, witness statements, and interviews with the children. S.R. argued for custody, highlighting her care for the children and alleging neglect by N.K. N.K. countered, emphasizing her longer period of care and the children’s stability in Georgia.

A determination must be made as to which parent should be awarded physical and legal custody of the Subject Children.

After a thorough trial and consideration of the evidence presented, the court granted Ms. K primary physical custody of the Subject Children. However, joint legal custody was awarded to both parties, with specific spheres of influence allocated to each parent based on their strengths and circumstances.

Throughout the trial, both Ms. R and Ms. K presented arguments and evidence to support their claims for custody. Ms. R emphasized her efforts in providing a supportive home environment, educational opportunities, and community engagement for the children. On the other hand, Ms. K highlighted the stability of the children’s current living situation in Georgia and argued that uprooting them would be detrimental.

The court considered various factors, including the stability of the children’s lives, the quality of the relationships with each parent, and the children’s own wishes. Despite both parents’ love for the children, the court noted instances of poor judgment and lack of cooperation, particularly in the way the children were moved between households without consideration for their well-being.

In the end, the court ruled in favor of Ms. K having primary physical custody of the Subject Children, acknowledging the stability they had found in Georgia. Even though Ms. K allegedly took the Subject Children to live with her in Georgia without notice to Ms. R, the Subject Children stayed there for several years. However, recognizing the importance of both parents in the children’s lives, joint legal custody was granted, allowing both Ms. R and Ms. K to be involved in important decision-making processes regarding the children’s upbringing. Additionally, a detailed visitation schedule was established to ensure that Ms. R maintains a meaningful relationship with the children despite the physical distance.

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