It's Time for a Joint Custody Presumption

By Carol W. Most

New York State is a "best interest" custody state that gives the courts a wide latitude to choose a parenting custody plan that is in the best interest of the children and family. DRL § 240 specifically states: "The court shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interest of the child." The standard is well ensconced in cased law as well. See Eschbach v. Eschbach 56 NY2d 167; Friederwitzerv. Friederwitzer, 55 NY2d 89 (982).

How does this concept mesh with the Court of Appeal's decision in Braiman v. Braiman, 44 NY2d 584 (978), which stated that courts should not impose joint custody arrangements on parents who are "severely antagonistic and embattled" and who are unable to put aside their differences for the benefit of the children?

Shouldn't parents, perhaps, be obliged to do just that - put aside their differences for the best interest of the children? In many cases joint custody is clearly what is in a child's best interest, and courts should be free to order joint custody without the fear that it is only an option when the parties agree.

Precedent exists for a different focus

The language and terminology used by the courts have not kept up with the realities of practice and trends. Despite the Braiman decision and the belief by some courts that absent an agreement a court may not order joint custody, some courts have taken the position hat an award of joint custody outside an agreement is appropriate, and these decisions are sometimes upheld on appeal. While it is acknowledged that joint custody is not appropriate where the parties are so embittered as to preclude joint decision-making, such an rrangement can and should be ordered "where both parents are fit and loving parents, possess a desire to share in the upbringing of their child and have demonstrated a willingness and ability to set aside their personal differences and work together for the good of the child." Baisch v. Baisch, 260 AD2d 757 (999). In Haran-Buckner v. Bucknm; 188 AD2d 705 (3rd Dept. 1992), the court reversed a family court award of sale custody in favor of a joint custody award.

Joint Custody

Division found that the patties were able, except for minor exceptions, to make important decisions affecting their child. The child was developing well and had a good rapport with both of her parents. In the matter of Martin v. Mal1in, 113 AD 2d 943 (2nd Dept. 985), the Appellate Division, Second Department affirmed a joint custody award. The appellate court held the award was appropriate and recognized that, while the parties had some difficulties, their relationship was not so antagonistic or "embattled" as to make an ward of joint custody improper. See also, Venable v. Venable, 122 AD2d 374 (2d Dept. 1986); Guarnier v. Guarnier, 155 AD2d 744 (3rd Dept. 1989); Monaban v. Monahan, 178 AD2d 829 (3rd Dept. 1991). In juneau v. juneau, 206 AD2d 647 (1994 3rd Dept.), the Appellate Division reversed an order of sole custody in favor of jOint custody. The Supreme Court had failed to order joint custody under the belief that, without an agreement by the parties, they could not do so. The appellate court held that "[j]oint custody may be ordered hen both parties are fit and loving parents who desire to share in the upbringing of their children, providing they have demonstrated a willingness and ability to put their differences aside and behave in a 'mature civilized fashion' for that purpose." In juneau, espite the evidence that the parties bickered incessantly during the maniage, there was no evidence that the parties were so "embattled and embittered" that they would be unable to work together in a joint custody arrangement. The court awarded joint legal custody and oint physical custody for the minor children in the matter of Palmer v. Palme!; 223 AD2d 944 (1996). The Third Department affirmed that order despite the record reflecting that the parties had disagreed over certain issues regarding the children because there was also evidence that each parent had attempted to foster the children's continued relationship with the other parent. The parties had refrained from nvolving the children in the divorce and, while each parent had a different parenting style, each parent had the children's best interest at heart and had worked together toward that end. The Appellate Division reversed a sole custody award in the matter of Gainey v. ainey, 303 AD2d 628 (2003), and granted the parties joint custody, finding that it was in the best interest of the child. (In Gainey the parties had agreed upon a joint residential custodial arrangement.) In the matter of Cheryl AD. v. jeffrey G.O, 133 Misc. 663 (1986), tlle court dentified factors in awarding joint custody: Where joint custody is contemplated or sought, the court shall consider the following relevant factors: (a) The ability of parents to cooperate in the rearing of children; (b) Methods for resolving disputes regarding any major decision concerning the life of the child, and the parents willingness to use those methods, and Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing.

One must query whether one parent's refusal to cooperate in joint decisionmaking should actually be an enumerated factor in the custody determination. Isn't it just as significant as factors like encouraging and fostering a relationship with the other parent, whether there is domestic violence in the home or what the quality of the home environment is? It is time to, at we recognized that in many instances the importance of children having two parents actively involved in their lives is truly what is in their best interest. The presumption should therefore be for a joint custody arrangement. Parents have a duty and obligation to set aside their differences for their children's welfare. A parent's unilateral decision not to do so should be treated as a factor that can be used gainst them in their quest for sale custody, absent a truly legitimate reason for opposing.

The better solution

These factors while important leave out a significant issue: What is the court to do when both parents are fit and actively involved in tlleir children's lives and one parent refuses to agree to joint custody, despite the evidence that it is the best interest of the hildren? Shouldn't that litigant's refusal to 'joint parent' be a significant factor in the Court's decision? The court can jump through hoops to create a sense of fairness and equity at arriving at decision-making guidelines. Courts have done just that when they create zones of decision making" or "spheres of influence."

Marital Agreements

Pursuant to the agreement, the wife's receipt of maintenance was conditioned on her being employed and simultaneously taking at least six college credits, and further limited the husband's obligations by providing that, even if those stringent requirements were, he would only have to pay the difference between the wife's other income and the sum of $15,000 per year. Fmther evidence of the agreelnent's unconscionability was the requirement that the wife transfer her share of the jointly held marital home to the husband and i.e provision that she grant to him an irrevocable power of attorney, allowing him to sign her name to any documents, checks, deeds, leases and instruments required to effectuate the intent that the wife return to tlle husband any assets held by her, and which only required the husband to return to the wife those personal items specifically set forth in the agreement. After the agreement was signed, the husband (an attorney) induced the wife to sign a loan agreement for a mortgage of $85,000.

On a second home purchased by him, and kept for himself the entire proceeds from this transaction. The wife's psychiatrist, who testified at the hearing, characterized the wife as being very trusting of the husband and emotionally dependent on him. The husband's irect testimony in Weinstock indicated a "fatal lack of disclosure" concerning his financial affairs. The record was also replete with evidence of the wife's diminished capacity due to her periods of dependence on Valium and alcohol. The Appellate Division held that he agreelnent was "so manifestly unfair and the apparent product of coercion and overreaching" on the part of the husband, that it was properly set aside. It concluded that, as the agreement was void ab initio, it could not serve as the predicate for a conversion divorce. (We note that the court applied the doctrine of unconscionability to the property distribution and maintenance provisions, and did not find itself limited by the language of DRL Section 236(B)(3) Subdivision 3.) In Tchorzewski v. Tchorzewski, 278 A.D.2d 869 4th Dept. 2000), the Supreme Court had granted the husband band a default judgment of divorce incorporating the separation agreement.

The Appellate Division found that there were sufficient indicia of the husband's overreaching to require rescission of the financial provisions of the agreement. The court pointed out that the fact that the defendant wife was not represented by counsel did not, by itself, invalidate the agreement, but that it was a "significant factor to be taken into consideration in determining whether the eparation agreement was freely and fairly entered into." The separation agreement provided that each party had made independent inquiry into the other's financial circumstances and that full disclosure had been made. Not with standing ,at provision, the testimony of laintiff's attorney, who drafted tl,e agreement, established that plaintiff's pension was never valued at that time. The parties did not own real property, and the pension was tl,e largest marital asset. In exchange for her waiver of any share in the pension, defendant received $15,000 from plaintiff's 401K account.

Posttermination

The factors a court may consider, the panel suggested, include the ages of the children, the bond between the children and their parent, and the likelihood tbat the children will be adopted. The court added, "To the extent that our decisions in Matter of Kenneth D. (32 AD 1237) and Matter of Livingston County Dept. of Social Services v. Tracy T. (16 AD3d 1133) hold otherwise, they are no longer to be followed." The panel also applied its holding to Kahli's older brother's case, Matter of Terrell Z. Jr, 35 AD3d 1166 4th Dept. 12/22/06). Buffalo solo practitioner Evelyne A. O'Sullivan represented Mamie W.K. "What may have sttuck the [panel] is the age of the children" - Kahlil is 12 and Terrell is 15 - "and [tl,at] neither is in a pre-adoptive home," Ms. O'Sullivan said. Russell Fox and David C. Schopp of the Legal Aid Bureau of Buffalo, who represented Kahli"S. Fox, said that Family Court Judge Kevin M. Carter was sympathetic to Kahli and Terrell"s desire to see their mother, but that his hands were tied by the Fourth Department"s recent decision in Matter of Livingston County. Joseph T. Jarzembek represented the Erie County Department of Social Services. Mr. Jarzembek could not be reached for comment.