Can Sibling Children be Split Apart When All Have the Same Custody Wish?

The short answer is yes, if the best interests of the children suggests different parents should have custody, as the recent Long Island case summarized below illustrates.  Child custody battles everywhere, as in Nassau County, New York can be extremely difficult, both for the parents and for the children. If a couple is not able to mediate and come to an agreement between themselves, the court must often devise creative solutions to highly charged and sensitive problems. The best interests of the children are of paramount importance to the court when making a custody determination.

In Kramer v. Kramer, the New York Supreme Court of Nassau County considered an acrimonious child custody battle, within a divorce, in a dysfunctional family. The couple had married in 1992. The husband mostly worked as a construction supervisor. The wife completed a master’s degree in early childhood education at the time they married and worked for a short period at a Jewish school. After that, she stayed home to raise the kids. The case was filed in 2011. At the time she commenced divorce proceedings, seeking temporary sole custody of the kids, maintenance, and exclusive occupancy of the marital home, she was working as an event coordinator.

In the case, the wife alleged that the husband had drained their joint bank accounts and reduced his support for the kids and her. The defendant claimed the plaintiff, his wife, turned the three oldest of his four kids against him. He also claimed she was unstable and had an undiagnosed mental illness.

The court needed to determine custody of the three youngest children. All three had expressed hostility towards their father. At a court-ordered evaluation, the wife didn’t show up for sessions. The parents couldn’t agree on a therapist for the kids. The wife claimed she was being stalked by the husband, filed a petition for a stay away order of protection, and requested sole custody. The order of protection was granted.

The wife called CPS repeatedly for over a year, making abuse allegations against her husband. These allegations were determined to be unfounded. In 2012, a parenting coordinator was appointed but had no impact. Then, three of the kids claimed the husband was mistreating them. The husband complained his sons were physically abusing and assaulting him, and that trying to punish them only made it worse. The wife didn’t support his attempts at discipline. The court ordered the parties and their kids to be examined by a psychologist. A doctor described the parenting relationship between the boys and their father as toxic. Other therapy was sought.

The wife also helped the boys file a police report against their father for “stealing” their hockey equipment, when he took it away as a punishment. A 12-day custody trial was held in 2014. The court noted that it was found the husband tried to avoid child support obligations by intentionally reducing his employment income.

The court explained that the main consideration when determining custody is the best interests of the children and what will promote their happiness and welfare. The factors a court must consider include each parent’s ability to provide for a child’s development, each parent’s ability to provide parental guidance, each parent’s relative fitness, and the impact that awarding custody to one of the parents will have on the child’s relationship with the other parent. The court is required to look at the totality of the circumstances.

In this case, the court noted that if the wife were awarded custody, the boys would likely have no relationship with their father. It explained that the best interests of the children were to be nurtured and guided by both parents. The wife had interfered with the husband’s ability to have a loving relationship with his kids. The court explained that although an older child’s preference was an important factor, this factor might be manipulated by one parent and might not be in the child’s best interest. With respect to two of the kids, the court found the wife should have legal custody because the boys’ hatred of their father would intensify with their resentment of his custody.

However, with respect to the youngest child, the daughter, the court determined it wasn’t in her best interest to follow her stated preference. The court noted that splitting siblings was discouraged. However, living with her brothers would result in her adopting her brothers’ attitudes. Accordingly, the husband was given custody of his daughter, and the wife would have visitation. The wife was required to undergo therapy and warned that if she disrupted the husband’s relationship with the daughter, visitation would be limited and supervised.

If you are considering using mediation for your New York divorce, or need guidance on child custody and visitation matters, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family lawyer and mediator.

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