Courts usually do not render court orders ordering joint custody. Parents can work out joint custody agreements, but these usually have to be worked out out of court. In an unusual case, a court attorney referee in Nassau County Supreme Court recently rendered a decision which granted both parents joint legal and physical custody of the children. She rendered this decision because she felt it was in the children’s best interests.

Each Parent Wanted Sole Custody

In this case the mother and father each sought sole custody of the two minor children of the parties in their divorce lawsuit. An attorney was appointed to represent the children. This attorney for the children took the position the father was better suited to manage the children’s educational needs.

Equal Parenting Time

The parents had previously entered into a temporary parenting schedule which gave each parent virtually equal parenting time with the parties’ two sons. Referee McCormick referred to the New York State Court of Appeals case of Braiman v. Braiman with regard to the issue of joint custody. This case noted joint custody was inappropriate when both parties were “embattled and embittered.” However, it did not prevent courts from ordering joint custody in all cases.

Referee McCormick found the evidence set forth that both parents were actively involved in their children’s lives. Both of the boys enjoyed spending time with each of their parents. She also found that both parents sought to encourage the relationship between the boys and the other parent. She found the parents lived in close proximity to each other and therefore joint custody was a feasible solution to this case. Referee McCormick found both parents should have a decision making role for their children. She also found the parents should each have about an equal amount of parenting time with the parties’ children. Court Attorney McCormick went on to award joint physical and legal custody to both of the children’s parents based on the fact it was in the children’s best interests.

Conclusion

This is an unusual decision. Courts rarely order joint custody in situations where the parties cannot amicably work out joint custody arrangements on their own. Court Attorney McCormick’s decision is well reasoned and appropriate in this case.

In a case before Onondaga Family Court Judge Michael Hanuszczak, a father sought a change in custody due to the mother violating a custody order by preventing him from having access to the parties’ child for a period in excess of one month. He specifically requested physical custody be changed from the mother to him. The mother had brought her own application to the Family Court. She sought a modification of the current custody order from joint custody to sole custody for her.

Mother Violates Custody Order

During the course of the proceedings, the mother acknowledged she had violated the prior custody order by withholding the child from the father. She stated she took this action because the exchanges of the child between the father and the mother had become violent. Judge Michael Hanuszczak found the mother had willfully violated the order of custody. The judge took the position there was enough credible testimony with regard to the change in circumstances warranting a change of the prior custody arrangement. He held the breakdown and deterioration of the parental relationship between the mother and the father was itself a change of circumstances justifying a modification of the custody order.

Father To Provide a More Stable Environment for Child

The judge reached a decision whereby joint custody was no longer viable due to the lack of communication and the hostility between the father and the mother. The judge found the father could provide a more stable environment for the parties’ child. The judge took into consideration that even though the father was unemployed he had stable housing and a family support system. The judge found the mother’s inappropriate behavior during the course of the exchanges of the child and her willful violation of the prior custody order by preventing the father from having parental time with his child was detrimental to the child’s best interests. Judge Hanuszczak therefore awarded the father sole legal and physical custody of the child.

Conclusion

If you find yourself in a situation where the child’s mother is disobeying a custody order which granted you parenting time with your child, you can bring a proceeding to change custody. Children have two parents and both parents have a right to have a relationship with their children.