Appellate Court Overrules Trial Court’s Decision Giving Mother Sole Custody

father's rights lawyerThere was a marriage between Melissa C.D. and Rene I.D. in 1990. Three children were born from the marriage. A fourteen year old daughter, a five year old daughter, and a seventeen year old son. The parties lived together until October 2010.

In a proceeding in November 2010, acting Supreme Court Justice Ann O’Shea awarded Melissa sole residential custody of the parties’ daughters. She made this ruling in spite of the fact the fourteen year old child wanted to continue to live with her father. Judge O’Shea’s decision was based upon her finding the daughter’s best interests were to have no contact with her father or brother for six weeks after moving. Although Justice O’Shea awarded physical custody to Rene, she gave the parties joint decision making authority with regard to all issues concerning healthcare and education. However, in the event of a dispute between the parties Melissa was to have the tie breaking authority to make the final decision.

Children Alienated

The basis for Judge O’Shea’s decision was her ruling that Rene had alienated the older children. She found the alienation related to Rene making inappropriate comments about Melissa. Judge O’Shea found that as a result of the parental alienation of the two older children, they were “vindictive, cruel, angry and broken children.” Judge O’Shea understood the oldest daughter would not be happy with being forced to live with her mother against her wishes. However, in her decision she stated this was “temporary and far less emotionally destructive than abandoning her to an unfit parent which may leave her with permanent emotional scars.”

Appeals Court Decision

The appeals court found although Rene had made inappropriate comments with regard to Melissa, Judge O’Shea’s ruling was incorrect. They found she was “placing undue emphasis on a single factor, the father’s alleged alienation” of the two children. The appeals court found the decision was not in the oldest daughter’s best interest. The appeals court stated in its decision this would “disrupt her life by removing her against her wishes from her father and brother in Manhattan, where she had always lived, and placing her with her mother and her mother’s lover, a situation that she is not comfortable with, on Long Island, in a community that she does not know.” The appeals court felt Judge O’Shea did not take into consideration Melissa’s inappropriate behavior. The court found Melissa’s inappropriate behavior was a factor in the children’s feeling of abandonment and anger. In addition, the appeals court panel took into consideration a court appointed independent, forensic evaluator at the time of the trial had testified there was no evidence the two older children had been alienated by the father. The appeals court also advised the father to be careful as to what he says to the children in the future. His obligation will be to promote the relationship between the children and the mother.


advocating father's rights on Long IslandThis was a victory for father’s rights.

About Elliot S. Schlissel

Elliot S. Schlissel, Esq. has spent more that 45 years representing individuals in matrimonial and family law cases.