When There Are No Custody Heartstrings to Pull
There is something about parental arguments over children, otherwise known as custody disputes in the matrimonial arena, that generate a spectrum of emotions not seen in the context of disputes over dollars. Certainly, financial disputes carry their own set of emotions for divorcing spouses. But custody disputes tend to open the door to claims made in litigation that, from the outsider’s attentive view, are sometimes a bridge too far.
How can we explain the tendency of litigants to overreach when it comes to custody disputes? First, there is the salt on the wound feeling from shifting from a world in which a parent (stay at home or working) expects to see their child each day to a world in which days are spent by a parent without his or her child in the home.
Ashleigh Louis, Ph.D., a mediator with a background as a dual-licensed psychologist and marriage and family therapist who does work for Quantum ADR, describes the feeling of absence as follows: “Every moment that is allocated to the other parent is time that parent does not get to spend with their child, and the absence of control and oversight over their child’s wellbeing can set off a cascade of worry and distress. There tends to be significant hurt, anger, resentment, sadness, and other challenging feelings that can permeate the ongoing lens through which they view the other parent, not only in their relationship with each other, but also in their relationship with their shared children.”
Second, there is the instinct to use children as a vehicle through which a parent can voice his or her displeasure, or anger, against the other parent. Louis describes the tendency to view children through the lens of the parent-parent relationship as follows: “Parents in custody disputes may project the relational wounds from their romantic relationship onto the parent-child relationship.
In some families, this may cause a genuine misinterpretation that stems from a well-intentioned protective instinct. In others, it may be a deliberate manipulative strategy aimed at increasing leverage or enacting revenge. It’s important to look for opportunities to give people the benefit of the doubt while also evaluating the current facts to determine the validity of the accusations, especially when safety concerns are involved.”
Indeed, this author wants to at least try to give the benefit of the doubt to the petitioner-mother in the context of what we can discern from the April 2024 decision of Judge Darlene D. Harris (Family Court, Nassau County) In the Matter of a Proceeding Under Article 6 of the Family Court Act.
In this case, the parents were not married, and had one child born in 2011. In 2020, the parents entered into a Final Order Modifying Order of Custody and Parenting Time (FOCV) whereby the parties had joint legal custody and the respondent-father had residential custody.
The mother filed a petition for violation of the FOCV, and the father filed a motion to dismiss, which was joined by the attorney for the child.
In Judge Harris’ decision dismissing the petition, the court recounts that “neither the petition itself, nor the supporting affidavit set forth sufficient factual allegations requiring a hearing. The papers submitted by the mother consist almost entirely of conclusory statements, claims predicated upon hearsay and wholly lacking in specificity, and also, claims pertaining to actions or inactions of third parties that are beyond the control of the father.”
The legal precedent to take note of is straightforward, or at least it should be: “conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on the issue of whether a change in custody would be in the best interests of a child.”
I had to read Harris’ decision several times to try to understand what it was that the mother was claiming; here is my best assessment:
1. In enrolling the parties’ child for mental health therapy, the father chose a “self-pay” option “in lieu of utilizing the mother’s insurance coverage.” As the decision explains “The mother has not attached any of the paperwork to which she refers, nor has she cited to any provision of the 2020 FOCV that requires any specific payment method for the child’s medical treatment or that requires the Father to provide any information pertaining to same directly to the mother.”
2. Even more puzzling, the FOCV provided the mother with “direct access to providers for information. Whether those providers release information to the mother is beyond the father’s control. Thus, no actual violation of the 2020 FOCV has been alleged.”
3. The mother admitted on the record that she was provided “all of the information that was sought from the child’s current therapist such that her claims in that regard are rendered academic in any event” (emphasis added). This aspect of the decision should not be overlooked: the mother had the information that was the subject of her claims, but brought the petition anyway, e., does it matter from whom she obtained the documents? Perhaps in a law school classroom, it does, but not a court of law as our courts should not be used as an “academic” forum.
4. Then, the mother claimed that the father did not provide the child’s school with a copy of the 2020 FOCV “though he was not required to do so, and that the school has failed to contact her directly which is a matter beyond the control of the Father. Her claims regarding the Father’s interactions with school personnel are without basis in fact and devoid of any specificity and evidentiary support.”
Also worth noting is that the child’s position on these issues supported dismissal of the petition to such an extent that the court stated: “The parties would be best served to be mindful of the child’s position regarding the matters before the court and to guide themselves accordingly in her best interest.” To summarize, as best I can tell, the mother’s claims were either unsupported by the plain language of the FOCV and/or predicated upon hearsay and alleged inactions on the part of third parties over which the father had no control.
To put this into practice, here are some examples of conclusory statements/claims I have heard throughout the years:
Conclusory allegations about a child’s diet: To paraphrase—“When my son is with my wife, all she does is feed him sugar.” Please do not accept that statement at face value. I’ve often wondered how this works in practice: Mom is out to dinner in Manhattan with her son for a nice Italian dinner, and she tells the waiter: “Please bring my son a bowl of sugar.” Of course, there will be cases when a parent may be neglectful in terms of a child’s diet, but again, conclusory allegations merit pushback if the goal is, as it should be, to actually provide informed legal advice.
Conclusory allegations about use of technology: Technology overload is inescapable in our culture and custody disputes are no exception—“Every time my kids are at my husband’s house, all they do is watch screens.” Do you see a pattern developing here? The use of the words “all,” or “always,” or “never”; words that should not be blindly accepted. For better or worse, the use of technology has become so woven into the fabric of society that it would be wise to check your facts before hurling allegations about screen time. Those allegations may have teeth, but we can’t know that if we don’t ask questions of our clients.
Conclusory allegations about lateness: Last, but not least— “My wife is always three, five, or seven minutes late to start her access periods.” Assume for the moment that the wife works full-time in Manhattan, and commutes home in rush hour traffic to Westchester or Connecticut. That explains the minutes late “issue,” does it not?
Conclusion
The moral of this story is once again that it is critically important to analyze a parent’s claims regarding custody. It is a disservice to clients and the court system to bypass that analysis and instead prematurely proclaim “we need a forensic” immediately upon getting a fleeting whiff of the slightest disagreement between parents over a child-related issue. The alternative is to accept our clients’ statements about the other parent at face value, lob them at the steps of the courthouse without any due diligence, only to then get our you-know-what handed to us in court. No thanks.
"When There Are No Custody Heartstrings to Pull," by Alan R. Feigenbaum was published in the New York Law Journal on June 4, 2024.
Reprinted with permission from the June 4, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.