Child Custody / Answers

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November 28, 2009

שאלות ותשובות בדיני החזקת ילדים – לפי חוקי מדינת ניו-יורק

What factors do courts take into account when deciding who gets custody of the children?

Almost all courts use a standard that gives the ”best interests of the child” the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends on many factors, including:

the child’s age, sex, and mental and physical health
the parent’s mental and physical health
the parent’s lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
the emotional bond between parent and child, as well as the parent’s ability to give the child guidance
the parent’s ability to provide the child with food, shelter, clothing, and medical care
the child’s established living pattern (school, home, community, religious institution)
the quality of the child’s education in the current situation
the impact on the child of changing the status quo, and
the child’s preference, if the child is above a certain age (usually about 12).

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment, and which parent will better foster the child’s relationship with the other parent. With younger children, this may mean awarding custody to the parent who has been the child’s primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships

If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent’s chances of getting custody at a later date?

In a word, yes. Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it’s unwise to leave the children behind. The parent who leaves sends a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children’s regular routines.

If a parent must leave the familial home (and wants to be the primary physical custodian), the moving parent should take the children along and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without that parent’s consent or knowledge. Family law judges frown on a parent who removes the children from the home without seeking the court’s recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.

Are courts more likely to award custody to mothers than to fathers?

In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what’s in the children’s best interests, without regard to the parent’s gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children’s daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what’s best for the children. So if you think that you should have primary custody and that you can persuade the judge that it’s in the kids’ best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

Does custody always go to just one parent?

No. Courts frequently award at least partial custody to both parents, called “joint custody.” Joint custody takes one of three forms:

joint physical custody (children spend a substantial amount of time with each parent)
joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
both joint legal and joint physical custody.

In New Mexico and New Hampshire, courts are required to award joint custody, except where the children’s best interests — or a parent’s health or safety — would be compromised. Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement.

Is race ever an issue in custody or visitation decisions?

The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the mother was awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision

Who determines how much visitation is reasonable and fair?

When a court awards physical custody to one parent and “reasonable” visitation to the other, the parent with physical custody is generally in the driver’s seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.

Unfortunately, it sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

Is mediation the best approach to solving disagreements about child custody?

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute. The mediator does not have power to impose a solution on the parties, but assists them in creating an agreement of their own. (In Alaska, California, Delaware, Michigan, New Mexico and South Dakota, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement.)

There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less!

Categories: Child Custody / החזקת ילדים.

Child Custody and Religion

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November 28, 2009

החזקת ילדים

When parents of different faiths separate, how do courts decide whose religion the children will follow?

When parents of different faiths separate, they don’t always agree on whose religion the children will follow. With increasing numbers of interfaith marriages and high divorce rates, this topic has recently been argued in courtrooms across the country. The results? A hodgepodge of decisions that lack national uniformity, leaving parents at the mercy of a court’s discretion.

The Rights of Parents vs. The Best Interests of the Child

When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. On one hand, courts must protect an individual parent’s First Amendment right to the free exercise of religion as well as the right to raise his or her child as he or she wishes, as long as those parenting choices do not endanger the welfare of the child. On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child.

When one parent complains that the other parent’s religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the other parent’s First Amendment and parenting rights by limiting religious activities.

The Law in Religion and Custody Cases

Because the U.S. Supreme Court has not yet decided a case involving religious upbringing and custody, there is no uniform national law. Instead, the law varies from state to state. Most state courts apply one of the following three legal standards when deciding these cases:

Actual or substantial harm. The court will restrict a parent’s First Amendment or parenting rights only if that parent’s religious practices cause actual or substantial harm to the child.
Risk of harm. The court may restrict a parent’s First Amendment or parenting rights if that parent’s religious practices might harm the child in the future.
No harm required. The custodial parent’s right to influence the religious upbringing of her children is considered exclusive. If the custodial parent objects to the noncustodial parent’s religious activities, that’s the end of it: The court will defer to the custodial parent’s wishes.

The Actual or Substantial Harm Standard

Courts applying this standard will restrict a parent’s religious activities only if the other parent proves that those activities cause substantial or actual harm to the child. This standard is used in many states, including California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Washington.

The cases discussed in this section provide examples of how courts following the actual or substantial harm standard may rule in various situations. Keep in mind that these decisions do not have to be followed by courts in other states or, sometimes, in the same state that the decision came from.

Munoz v. Munoz: Exposure to two religions does not cause harm

In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the state of Washington’s highest court ruled that exposing children to two different religions (Mormon and Catholic) is not harmful in and of itself and therefore does not justify restricting a parent’s religious activities.

Pater v. Pater: Restrictive religious customs are not necessarily harmful

In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio’s Supreme Court ruled that religious customs (Jehovah’s Witness in this case) that restrict a child’s social activities — even if they separate him or her from peers or go against community standards — are not enough to justify court intervention unless the practices harm the mental or physical health of the child.

Kendall v. Kendall: Physical acts and verbal threats justify religious restrictions

In Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), the highest court in Massachusetts ruled that a father’s verbal threats and physical acts toward his children, which were designed to interfere with their Orthodox Jewish religious practices, were enough to warrant restrictions on his First Amendment and parenting rights. (A court-appointed doctor found that the father’s actions — cutting off his son’s payes (the curls customarily worn by Orthodox Jewish males) and telling his children that anyone outside the fundamentalist faith was “damned to go to hell” –caused mental and emotional harm to the children. The court barred the father from sharing his religious beliefs, praying, or studying the Bible with his children if those activities would cause the kids to reject their mother or their Jewish identity or cause them emotional distress.)

The Risk of Harm Standard

In a handful of states, including Minnesota, Montana, North Carolina, and Pennsylvania, courts have used a different legal standard to decide cases where religion and custody collide. In these courts, a parent seeking to curtail the other parent’s religious activities need not demonstrate actual or substantial harm to the child, but only that there is a risk that the child might be harmed in the future.

In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court ruled that, since a young girl had identified as Jewish since age three, exposure to the Methodist religion might interfere with her Jewish identity and adversely affect her emotional well-being. Based on its concern that the girl might suffer harm in the future, the court gave the Jewish father sole control over the child’s religious education.

The No Harm Required Standard

In a few states, including Arkansas and Wisconsin, courts do not apply the actual or substantial harm standard or the risk of harm standard. Instead, these courts use a simple rule: The parent with sole legal custody has exclusive control over the child’s religious education. If a dispute arises over religious upbringing, the court will curtail the noncustodial parent’s religious activities and enforce the custodial parent’s desires. These courts reason that interfering with the noncustodial parent’s religious activities does not violate First Amendment rights, because the restrictions apply only to the time period in which the parent is with the children. At all other times, the parent is free to practice his or her religion as he or she chooses.

When parents have joint legal custody (which a majority of states now award unless it would harm the child), teachings from both religions may be allowed.

Johns v. Johns: Father forced to bring children to church during visitation

In Johns v. Johns, 53 Ark. App. 90, 918 S.W. 2d 728 (1996), an Arkansas court deferred to the custodial parent’s wishes. In this case, the father complained that the mother, who had legal and physical custody of the children, was preventing him from visiting with his kids. The mother said she was refusing visits because he didn’t take the kids to church and Sunday school. The trial court ordered Mr. Johns to bring the kids to church. The father appealed. The appellate court agreed with the trial court, holding that because the mother was the custodial parent, her desire that the kids attend church each week was paramount.

Zummo v. Zummo: Joint legal custody equals two religions

In Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990), the divorcing couple’s dispute about the religious upbringing of their children was resolved by ordering the father to take the children to Jewish services (the mother’s religion) and also allowing him to bring the children to Catholic services (his religion). The court believed that, because the couple shared joint legal custody, they each had the right to instill religious beliefs in their kids.

Some States Follow More Than One Standard

In some states, like Montana and Pennsylvania, one court will use the actual harm standard and another may use the risk of harm standard or the no harm required standard. Because the U.S. Supreme Court has not ruled in this area of the law, state courts do not have to adhere to any one standard unless the highest court in the state (usually called that state’s supreme court) has adopted a standard.

Parenting Agreements Regarding Children and Religion

When deciding a dispute about religious upbringing, courts might consider any oral or written parenting agreements that the couple previously made about how to handle the children’s religious upbringing. However, if you haven’t been able to stick to the agreement yourselves, a court won’t necessarily enforce it for you. In fact, most courts reject agreements about which religion the children will follow when their folks separate. Here are the reasons they commonly use.

The agreement is vague. Often, couples make such agreements informally, prior to marriage, without considering a future divorce or separation. As a result, the agreements are vague. For example, many agreements fail to specify the degree of religious training (how often the child will attend services or whether the child will attend additional classes, Bible studies, and other church-affiliated programs) or whether the children will be permitted to attend the other parent’s place of worship during special events.

This agreement is oral. The parties have different versions of the agreement and may disagree about the terms of the original agreement. A court will not enforce an agreement if it cannot determine what the parents originally agreed to.

The agreement is too old. Courts often hesitate to bind either parent to an agreement that was made many years in the past.

Courts don’t want to curtail First Amendment and parenting rights. As previously mentioned, courts are loathe to tramp on an individual’s First Amendment or parenting rights. Nor do courts want to get involved in ongoing supervision of parents’ compliance with an agreement; this can look like excessive government entanglement in private affairs.

Not all courts dismiss religious upbringing agreements, however. For example, in September 1999, an Indiana court ruled that the terms of a divorce settlement agreement regarding the religious upbringing of the children was binding on both parties. (Wilson v. Wilson, 716 N.E. 2d 486 (Ind. App. 1999).)

The short of all this is that if you enter into an agreement about the religious upbringing of your children, it stands the best chance of being enforced by a court if it is in writing, very detailed, and no more than a couple of years old.

What Does This Mean for You?

Because each state court can rule according to its own law, and the states profiled in this article can reverse their positions at any time, you may be better off settling your differences outside the courtroom.

However, if you are afraid that your child may be harmed by your ex’s religious practices, consider taking your child to a mental health professional. By doing so you’ll either calm your concerns or have real evidence that may help you to renegotiate with your ex. And, if all else fails, you can use the evidence in court.

If you must resort to the court system to resolve a dispute regarding your children’s religious upbringing, keep in mind the following:

You stand the best chance of obtaining a decision in your favor if you already have either sole or joint legal custody. (For more information on the different types of custody arrangements, see Types of Custody.)
Regardless of which legal standard your state court follows, using strong language or actions that offend the other parent may result in court restrictions on your religious activities or even cause a court to award sole custody of your children to your ex.