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Never Use A Child To Get Back At A Soon-To-Be Ex

640px-Gavel_1.pngAn appeal last month decided that a parent deemed more likely to co-parent cooperatively deserves primary residential custody even if that parent isn't exactly stellar. R.A. (ex-wife) married B.A. (ex-husband) in 2007 and had a son with him in 2009. In 2011, the couple filed for divorce and R.A. left their home to stay with her parents in Brooklyn, taking the child and his belongings, without giving the father any notice. "Defendant claimed she feared for [child's] safety if left with plaintiff since he possessed a gun." The lower court decided that she simply withheld the child to retaliate against the father "...because she believed plaintiff was having an affair and hiding assets from her with his business partner."

B.A. filed for divorce and made an emergency application to force the wife to return their child. That year, they had entered into an agreement to share joint legal and physical custody, with a parenting time stipulation. Following this, R.A. decided to take steps that were at odds with the "shared decision-making involving [the child]" For example, she got an order of protection from a New York court that prevented the father from interfering with her care and custody of the child, notwithstanding previous orders handed down by the New Jersey court. That New York court later correctly dismissed the action. She also threatened to sue the "operator of a gymnastics class that the father proposed to send [child] to on Saturdays, when he had parenting time."

The plot thickens, because she also "registered multiple complaints about her husband with the Division of Youth and Family Services, which ultimately found no reason for concern. She also alleged, but failed to prove, that he had an "alcohol problem."

In the following 2 years, she went on to obtain evaluations regarding the child's speech and other development related issues without the father's participation, as well as enrolling the child in a special Brooklyn pre-school program directed at children with special needs. The father, who did not participate or give consent, later agreed so as to not disrupt the child's schooling. He later invited her to attend an evaluation by a New Jersey licensed occupational therapist he had selected - she showed up, but objected to the session proceeding. He had to get a court order to allow the evaluation to proceed."

Interestingly, both parties hired a Ph.D. to do a custody evaluation based on an extremely in depth year-long process involving interviews, videotapes, observations, psychological testing, questionnaires, the child's records, etc. The expert created a 162-page report that the trial court found credible and helpful. In that report, the expert concluded it would be in the child's best interests to grant the father primary residential custody. Among other things, she also opined that the mother "... was consumed by the divorce-related conflict, and her family members were actively engaged in her cause."

The wife then got her own custody expert who came to the opposite conclusion. The court disregarded this, because this new expert did not comply with Specialty Guidelines for Psychologists Custody/Visitation Evaluation promulgated by the New Jersey Board of Psychological Examiners.

The lower court ultimately issued a 90 page decision. It concluded that the father was "more likely than the mother to co-parent and work cooperatively." The judge wrote that based on the evidence, the father was much more likely to try and resolve matters and respect the mother's rights involving the child. She nt was granted parenting time three out of every four weekends, Wednesday afternoons, half of summer vacation and alternating significant holidays.

The father was sent to therapy for his anger management and the mother was sent for neuropsychological evaluation and individual therapy. Finally, a parenting coordinator was to be hired, to assure that both parents were informed of the child's activities, appointments, and events. The court later granted an application by the father to terminate these obligations and get child support from the mother

The appeals court agreed with the trial court on every single point. The best interests of the child, which are always the tantamount goal in the mind of any family court judge, controlled here. The case is a good illustration of what happens when parents allow their personal gripes to affect their ability to consider the best interests of their child. Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.


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