Child Custody Factors: Relationship with Both Parents Gains in Importance

As noted, in New York, neither the statute nor the case law defines “best interests” in any operational sense. As one Maryland court forthrightly acknowledged, “At the bottom line, what is in the child's best interest equals the fact finder's best guess.” Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406, 419, 381 A.2d 1154 (1977). The concept is amorphous because it is inherently value-laden. There is no objective optimal outcome for the child. The only way the desired outcome can be divined in a given case is by reference to socio-moral value judgments made by the presiding judge.

For example, suspending reality and assuming the ability to predict outcomes perfectly ' suppose one were to know that if custody is given to Parent A, the child will enjoy a rich intellectual life, will excel in college and professional school, and go on to a lucrative and fulfilling professional life, honored frequently with achievement awards and other distinctions. The child will also, however, at a number of life's pressure points endure significantly elevated stress levels, with periodic physical manifestations that from time to time will require resort to anti-anxiety and anti-depression medications.

On the other hand, if custody were given to Parent B, the child will grow up with little appreciation of education or intellectual pursuit, will squeak through high school, drop out of college, maintain spotty employment, and never really achieve anything in the material/professional world. The child will, though, never experience a moment of stress or anxiety and will cavort about happy as a pig in slop.

Which of these two outcomes is superior? This question has been put to numerous audiences nationwide, consisting of both attorneys and mental health professionals. The responses are always mixed. Some see achievement as the higher value, while others opt for a relatively stress-free life. Neither is objectively right nor objectively wrong. Either answer can be embraced without fear that the choice will be contradicted by objective evidence or empirical research, because socio-moral value judgments must be made as a precondition to answering the question. Therefore, it is not a question that can be answered by behavioral science research or mental health theories. The behavioral science field can be of immense assistance to the custody court in providing relevant information, but it cannot resolve the policy judgments that are committed squarely to judicial authority. Only the courts can do that.

Custody Factors

While neither behavioral science nor the law objectively and operationally defines the “best interests” concept, the courts have described a number of factors to be considered in deciding upon the proper custodial arrangement. While these provide some useful guidance, they hardly constitute a fixed template that can objectively be applied. This is because there is no methodical weighting system that prescribes the relative importance of each variable.

For example, one parenting function of value is the contribution that a parent makes to the intellectual development of the child. Another is the parental contribution toward the child's emotional development. Well, suppose Parent A is the best provider of intellectual stimulation and motivation for superior intellectual development, while Parent B better affords the child emotional solace in times of travail. Which, if either, should count for more?

The behavioral science field does not answer that question and, given the ethical and practical limitations on psychological research design, probably never will be able to do so. While the law ascribes no formal weighting system that definitively answers the question, custody courts, as the duly designated arbiters of such values, must, in fact, do so, on a case-by-case basis.

In the absence of such a legally prescribed weighting system, one is left to discern the relative importance of the various factors by examining the published decisions in search of trends and patterns in the case law. A review of recent decisions in New York, in fact, does reveal that one factor in particular, namely, the willingness or unwillingness of a parent to actively encourage and support the child's relationship with the other parent, has risen to a preeminent position.

Relationship with Parents

The courts have embraced the concept that it is generally in the best interest of the child to have a healthy relationship with both parents following marital dissolution. Therefore, in determining custody disputes, the court may properly consider “the effect that an award of custody to one parent might have on the child's relationship with the other parent.” Bliss on Behalf of Ach v. Ach, 56 N.Y.2d 995, 439 N.E.2d 349 (1982).

In sustaining an award of custody to the mother in Bliss, the Court of Appeals noted:

In this child custody proceeding, the trial court found that, although both parents are fit to raise the child, the welfare of the child would best be served by placing primary custody in the petitioner mother. Very important in this connection was the court's determination that if the father were to receive primary custody, he would endeavor to fully integrate the child into his separate family, significantly downplaying the role of the child's natural mother, jeopardizing both the child's sense of identity and his relationship with his natural mother. A similar undesirable design on the part of the mother was not perceived.

Bliss on Behalf of Ach v. Ach, 56 N.Y.2d 995, 439 N.E.2d 349 (1982)

It is neither rare nor surprising that divorcing parents frequently feel great hostility toward one another. The courts, however, take a dim view of the litigant who allows such rancor to spill over and poison the natural love and affection that the child would ordinarily feel toward the other parent. 9 Eastman v. Drennen, 122 A.D.2d 397, 398'399, 505 N.Y.S.2d 211 (3d Dept. 1986). Where one parent acts to diminish the relationship between the child and the other parent, this effectively subverts the child's interests and can lead to psychological or emotional problems. Evidence of such behavior can cut strongly against the offending parent. Walden v. Walden, 112 A.D.2d 1035, 1037, 492 N.Y.S.2d 827 (2d Dept. 1985). Indeed, over time, the courts have enunciated this consideration in the strongest possible terms, declaring that interference with the child's relationship with the other parent is “so inconsistent with the best interests of the children as to, per se, raise a strong probability that the mother is unfit to act as custodial parent.” Entwistle v. Entwistle, 61 A.D.2d 380, 384-385, 402 N.Y.S.2d 213 (2d Dept. 1978).

Over the past decade or so, this factor has proven to be increasingly decisive. Numerous decisions just from the past year in the New York courts attest to its strength. In Diaz v. Diaz , 97 A.D.3d 747, 948 N.Y.S.2d 413 (2d Dept. 2012), the mother was awarded custody because “the father engaged in a course of conduct which intentionally interfered with the relationship between the children and the mother.” In Jones v. Pagan, 96 A.D.3d 1058, 947 N.Y.S.2d 580 (2d Dept. 2012), the mother's interference with the father's relationship with the children resulted in custody going to the father, notwithstanding the fact that the father had a criminal history.

Ashmore v. Ashmore, 92 A.D.3d 817, 939 N.Y.S.2d 504 (2d Dept. 2012), saw the court award custody to the mother, notwithstanding her history of mental disorder (obsessive-compulsive disorder and depression) and relegated the father to supervised visitation because his “actions demonstrated that he was unwilling to allow the children to have a relationship with the mother.” In Anthony MM. v. Jacquelyn NN., 91 A.D.3d 1036, 937 N.Y.S.2d 360 (3d Dept. 2012), the mother lost custody because she “continued to insinuate that the father was sexually abusing the child, despite the fact that no evidence of the alleged abuse was ever found by medical professionals who examined the child.”

Similarly, the court awarded custody to the father in Aaron W. v. Shannon W., 96 A.D.3d 960, 946 N.Y.S.2d 648 (2d Dept. 2012), upon the finding that he was more likely to promote the mother's relationship with the child than would the mother if she were the custodial parent without reference to any history of actual interference. Indeed, it seems clear that the obligation to promote the relationship actively is an affirmative one, as evidenced by the court's decision in Dobies v. Brefka, 83 A.D.3d 1148, 921 N.Y.S.2d 349 (3d Dept. 2011), wherein the court found it significant that the offending custodial parent was unable to cite any examples of disciplining the child when the child refused to go on visits with the non-custodial parent.

So important is this factor that it has the power to swamp substantial constellations of other factors that point in a different direction. A recent appellate decision exemplifies this potency:

After a hearing, ' Supreme Court performed a detailed analysis of the relevant factors and found that the father and mother were both fit, loving parents, each demonstrating significant strengths and weaknesses. In particular, the court noted that the father had exhibited occasional poor judgment in such serious matters as maintaining unsecured guns in the home, and the mother had taken a more proactive role in raising the children, had acted as their primary caregiver before the parties' separation and was better aware of their needs. However, the court found that the mother's positive attributes were outweighed by her 'cumulative efforts' after the separation to interfere with the father's relationship with the children and prevent him from having a meaningful role in their lives and by her 'willingness ' to deceive in order to achieve her goal of parenting the children without the [father's] involvement.'

Jeannemarie O. v. Richard P, 94 A.D.3d 1346, 943 N.Y.S.2d 246 (3d Dept. 2012).

Behavioral Science Support

The legal preeminence accorded the “willingness to foster” factor is well supported by the behavioral science research. In a well-documented compilation of family law-related research, Joan B. Kelly, Ph.D., one of the preeminent scholars in the field, has made clear that “children and adolescents in separated and divorced families are better adjusted when they have warm relationships with two actively involved and adequate parents ' ” Kuehnle, K., Drozd, L., Parenting Plan Evaluations: Applied Research for the Family Court, Oxford (2012, p. 67), adding that the research has shown that “ for four decades, children have reported the loss of the nonresident parent, usually the father, as the most negative aspect of divorce.” Id. at 66.

Other scholars in the field have expressed accord, noting that “the evidence now available that children in divorced families benefit from rich relationships with both their residential and non-residential parents leaves little room for debate.” Fabricius, W.V., Braver, S.L., Diaz, P., Velez, C.E., “Custody and Parenting Time,” in Lamb, M.E., The Role of the Father in Child Development (Wiley, 2010), p. 217.

Likewise, Jonathan W. Gould, Ph.D., and David A. Martindale, Ph.D., both members of the Board of Editors of this newsletter, also have made clear that there “is an emerging consensus that the benefits of maintaining contact with both parents exceed any special need for relationships with the mother or the father.” Gould, J.W., Martindale, D.A., The Art and Science of Child Custody Evaluations, Guilford 2007, p. 183.

Conclusion

Behavioral science has informed judicial decision-makers of the negative consequences to children when they are deprived of a post-divorce relationship with both parents. The task of prioritizing or weighting this factor relative to other pertinent variables, however, lies within the province of the courts, not the research community. In the case of the “willingness to foster” factor, the courts have done so in a manner that provides a striking point of clarity: The unwillingness to promote the relationship between the child and the other parent trumps the other factors, not only standing alone but also in combination with one another. Accordingly, irrespective of any litigant's feeling, belief, or deeply held conviction that the child would be better off without the other parent, acting on those feelings is likely the kiss of death in the custody arena.

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

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Deciding between parents in a contested child custody dispute is one of the most daunting challenges a court can face. The relevant statute in New York, for example, directs simply that the court make its decision on the basis of “the best interests of the child.” (Domestic Relations Law ' 240.) The statute essentially stops at this level of abstraction. It provides no objective or operational definition of “best interests of the child,” meaning that it remains an elusive concept, an aspiration really, rather than an operational standard.

Underscoring the subjectivity and complexity of the concept, judicial proclamations have made clear that the “only absolute in the law governing custody of children is that there are no absolutes” Friederwitzer v. Friederwitzer , 55 N.Y.2d 89, 432 N.E.2d 765 (1982), and that the court must base its determination on the totality of the circumstances. As often stated by the Court of Appeals, the decisional law eschews absolutes in favor of elucidating “policies designed not to bind the courts but to guide them in determining what is in the best interests of the child.” Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982). These decisions leave the litigation landscape immersed in a thick fog of subjectivity and the lawyers and judges who traverse it in constant search for points of clarity. As an example, a review of recent New York decisions offers slight elucidation.

An Elusive Aspiration

As noted, in New York, neither the statute nor the case law defines “best interests” in any operational sense. As one Maryland court forthrightly acknowledged, “At the bottom line, what is in the child's best interest equals the fact finder's best guess.” Montgomery County Dept. of Social Services v. Sanders , 38 Md. App. 406, 419, 381 A.2d 1154 (1977). The concept is amorphous because it is inherently value-laden. There is no objective optimal outcome for the child. The only way the desired outcome can be divined in a given case is by reference to socio-moral value judgments made by the presiding judge.

For example, suspending reality and assuming the ability to predict outcomes perfectly ' suppose one were to know that if custody is given to Parent A, the child will enjoy a rich intellectual life, will excel in college and professional school, and go on to a lucrative and fulfilling professional life, honored frequently with achievement awards and other distinctions. The child will also, however, at a number of life's pressure points endure significantly elevated stress levels, with periodic physical manifestations that from time to time will require resort to anti-anxiety and anti-depression medications.

On the other hand, if custody were given to Parent B, the child will grow up with little appreciation of education or intellectual pursuit, will squeak through high school, drop out of college, maintain spotty employment, and never really achieve anything in the material/professional world. The child will, though, never experience a moment of stress or anxiety and will cavort about happy as a pig in slop.

Which of these two outcomes is superior? This question has been put to numerous audiences nationwide, consisting of both attorneys and mental health professionals. The responses are always mixed. Some see achievement as the higher value, while others opt for a relatively stress-free life. Neither is objectively right nor objectively wrong. Either answer can be embraced without fear that the choice will be contradicted by objective evidence or empirical research, because socio-moral value judgments must be made as a precondition to answering the question. Therefore, it is not a question that can be answered by behavioral science research or mental health theories. The behavioral science field can be of immense assistance to the custody court in providing relevant information, but it cannot resolve the policy judgments that are committed squarely to judicial authority. Only the courts can do that.

Custody Factors

While neither behavioral science nor the law objectively and operationally defines the “best interests” concept, the courts have described a number of factors to be considered in deciding upon the proper custodial arrangement. While these provide some useful guidance, they hardly constitute a fixed template that can objectively be applied. This is because there is no methodical weighting system that prescribes the relative importance of each variable.

For example, one parenting function of value is the contribution that a parent makes to the intellectual development of the child. Another is the parental contribution toward the child's emotional development. Well, suppose Parent A is the best provider of intellectual stimulation and motivation for superior intellectual development, while Parent B better affords the child emotional solace in times of travail. Which, if either, should count for more?

The behavioral science field does not answer that question and, given the ethical and practical limitations on psychological research design, probably never will be able to do so. While the law ascribes no formal weighting system that definitively answers the question, custody courts, as the duly designated arbiters of such values, must, in fact, do so, on a case-by-case basis.

In the absence of such a legally prescribed weighting system, one is left to discern the relative importance of the various factors by examining the published decisions in search of trends and patterns in the case law. A review of recent decisions in New York, in fact, does reveal that one factor in particular, namely, the willingness or unwillingness of a parent to actively encourage and support the child's relationship with the other parent, has risen to a preeminent position.

Relationship with Parents

The courts have embraced the concept that it is generally in the best interest of the child to have a healthy relationship with both parents following marital dissolution. Therefore, in determining custody disputes, the court may properly consider “the effect that an award of custody to one parent might have on the child's relationship with the other parent.” Bliss on Behalf of Ach v. Ach , 56 N.Y.2d 995, 439 N.E.2d 349 (1982).

In sustaining an award of custody to the mother in Bliss, the Court of Appeals noted:

In this child custody proceeding, the trial court found that, although both parents are fit to raise the child, the welfare of the child would best be served by placing primary custody in the petitioner mother. Very important in this connection was the court's determination that if the father were to receive primary custody, he would endeavor to fully integrate the child into his separate family, significantly downplaying the role of the child's natural mother, jeopardizing both the child's sense of identity and his relationship with his natural mother. A similar undesirable design on the part of the mother was not perceived.

Bliss on Behalf of Ach v. Ach , 56 N.Y.2d 995, 439 N.E.2d 349 (1982)

It is neither rare nor surprising that divorcing parents frequently feel great hostility toward one another. The courts, however, take a dim view of the litigant who allows such rancor to spill over and poison the natural love and affection that the child would ordinarily feel toward the other parent. 9 Eastman v. Drennen , 122 A.D.2d 397, 398'399, 505 N.Y.S.2d 211 (3d Dept. 1986). Where one parent acts to diminish the relationship between the child and the other parent, this effectively subverts the child's interests and can lead to psychological or emotional problems. Evidence of such behavior can cut strongly against the offending parent. Walden v. Walden , 112 A.D.2d 1035, 1037, 492 N.Y.S.2d 827 (2d Dept. 1985). Indeed, over time, the courts have enunciated this consideration in the strongest possible terms, declaring that interference with the child's relationship with the other parent is “so inconsistent with the best interests of the children as to, per se , raise a strong probability that the mother is unfit to act as custodial parent.” Entwistle v. Entwistle , 61 A.D.2d 380, 384-385, 402 N.Y.S.2d 213 (2d Dept. 1978).

Over the past decade or so, this factor has proven to be increasingly decisive. Numerous decisions just from the past year in the New York courts attest to its strength. In Diaz v. Diaz , 97 A.D.3d 747, 948 N.Y.S.2d 413 (2d Dept. 2012), the mother was awarded custody because “the father engaged in a course of conduct which intentionally interfered with the relationship between the children and the mother.” In Jones v. Pagan , 96 A.D.3d 1058, 947 N.Y.S.2d 580 (2d Dept. 2012), the mother's interference with the father's relationship with the children resulted in custody going to the father, notwithstanding the fact that the father had a criminal history.

Ashmore v. Ashmore , 92 A.D.3d 817, 939 N.Y.S.2d 504 (2d Dept. 2012), saw the court award custody to the mother, notwithstanding her history of mental disorder (obsessive-compulsive disorder and depression) and relegated the father to supervised visitation because his “actions demonstrated that he was unwilling to allow the children to have a relationship with the mother.” In Anthony MM. v. Jacquelyn NN., 91 A.D.3d 1036, 937 N.Y.S.2d 360 (3d Dept. 2012), the mother lost custody because she “continued to insinuate that the father was sexually abusing the child, despite the fact that no evidence of the alleged abuse was ever found by medical professionals who examined the child.”

Similarly, the court awarded custody to the father in Aaron W. v. Shannon W. , 96 A.D.3d 960, 946 N.Y.S.2d 648 (2d Dept. 2012), upon the finding that he was more likely to promote the mother's relationship with the child than would the mother if she were the custodial parent without reference to any history of actual interference. Indeed, it seems clear that the obligation to promote the relationship actively is an affirmative one, as evidenced by the court's decision in Dobies v. Brefka , 83 A.D.3d 1148, 921 N.Y.S.2d 349 (3d Dept. 2011), wherein the court found it significant that the offending custodial parent was unable to cite any examples of disciplining the child when the child refused to go on visits with the non-custodial parent.

So important is this factor that it has the power to swamp substantial constellations of other factors that point in a different direction. A recent appellate decision exemplifies this potency:

After a hearing, ' Supreme Court performed a detailed analysis of the relevant factors and found that the father and mother were both fit, loving parents, each demonstrating significant strengths and weaknesses. In particular, the court noted that the father had exhibited occasional poor judgment in such serious matters as maintaining unsecured guns in the home, and the mother had taken a more proactive role in raising the children, had acted as their primary caregiver before the parties' separation and was better aware of their needs. However, the court found that the mother's positive attributes were outweighed by her 'cumulative efforts' after the separation to interfere with the father's relationship with the children and prevent him from having a meaningful role in their lives and by her 'willingness ' to deceive in order to achieve her goal of parenting the children without the [father's] involvement.'

Jeannemarie O. v. Richard P , 94 A.D.3d 1346, 943 N.Y.S.2d 246 (3d Dept. 2012).

Behavioral Science Support

The legal preeminence accorded the “willingness to foster” factor is well supported by the behavioral science research. In a well-documented compilation of family law-related research, Joan B. Kelly, Ph.D., one of the preeminent scholars in the field, has made clear that “children and adolescents in separated and divorced families are better adjusted when they have warm relationships with two actively involved and adequate parents ' ” Kuehnle, K., Drozd, L., Parenting Plan Evaluations: Applied Research for the Family Court, Oxford (2012, p. 67), adding that the research has shown that “ for four decades, children have reported the loss of the nonresident parent, usually the father, as the most negative aspect of divorce.” Id. at 66.

Other scholars in the field have expressed accord, noting that “the evidence now available that children in divorced families benefit from rich relationships with both their residential and non-residential parents leaves little room for debate.” Fabricius, W.V., Braver, S.L., Diaz, P., Velez, C.E., “Custody and Parenting Time,” in Lamb, M.E., The Role of the Father in Child Development (Wiley, 2010), p. 217.

Likewise, Jonathan W. Gould, Ph.D., and David A. Martindale, Ph.D., both members of the Board of Editors of this newsletter, also have made clear that there “is an emerging consensus that the benefits of maintaining contact with both parents exceed any special need for relationships with the mother or the father.” Gould, J.W., Martindale, D.A., The Art and Science of Child Custody Evaluations, Guilford 2007, p. 183.

Conclusion

Behavioral science has informed judicial decision-makers of the negative consequences to children when they are deprived of a post-divorce relationship with both parents. The task of prioritizing or weighting this factor relative to other pertinent variables, however, lies within the province of the courts, not the research community. In the case of the “willingness to foster” factor, the courts have done so in a manner that provides a striking point of clarity: The unwillingness to promote the relationship between the child and the other parent trumps the other factors, not only standing alone but also in combination with one another. Accordingly, irrespective of any litigant's feeling, belief, or deeply held conviction that the child would be better off without the other parent, acting on those feelings is likely the kiss of death in the custody arena.

Timothy M. Tippins, a member of this newsletter's Board of Editors, is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

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