New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

In the spirit of the upcoming holidays, Newsweek offers guidance to divorced parents on how to make the holidays better for their children.

Admittedly, the holidays are the most difficult and painful times for families broken apart by divorce. Both parents want to maximize their time with their children. Even the best intentioned parent may be tempted to play the game of one-upmanship by giving bigger and more expensive gifts to the children in an attempt to buy their love. All of this leads to increased stress and conflict at a time that should be joyous.

But, there are things that you can do to make the holidays easier for the children. According to Robert E. Emery, professor of psychology and director of the Center for Children, Families and the Law, the challenge is to view and conduct your behavior from the children’s perspective.

Professor Emery offers these tips, with my comments included, to make the holidays more bearable:

1. Remember that the holidays are not all about you.

”Encourage the children to have a blast with their other parent, even if you can't stand the prospect of being alone.”

2. Get into the spirit of the season.

”This is a time of giving, forgiving and fresh starts. Turn Scrooge's emotional lessons about holidays past, present and yet to come into New Year's resolutions about letting go of anger and treasuring all you have—despite all you have lost.”

3. Love means far more than money.
 

Your time, love attention and emotional presence are the best gifts you can give your children. You do not have to be physically present to “be there” for your children. .
 

4. The holidays are not a competition with your ex, or for your children.

5. Communicate and coordinate with your children's other parent.

Communication and planning will ease transitions and reduce conflict and redundancy.
 

6. Celebrate with your children's other parent.

Children may feel guilt abandoning one parent during the holidays. Do a good deed – for the sake of the children – and include the other parent; maybe next year the favor will be returned.
 

7. Set up a plan for next year now.
To avoid last minute disappointment or negotiations, plan for the holidays in advance; if there is a holiday schedule try to stick to it, but be willing to amend it as needed.

8. Establish traditions with your children.
Establish new traditions with your children. After all, it is the rituals and traditions, passed on from generation to generation that make holidays special.

I wish you all a healthy, festive, joyous, peaceful, stress-free and prosperous holiday season.
 

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I am back to blogging after a short break during my summer vacation.

While I was away, the Appellate Division in the case Karr v. Black, denied a grandparent visitation with her grandchild. The Court upheld a lower court’s finding that an intact family’s’ refusal to permit a mentally ill grandmother to have visitation with their child was sound; because the grandmother had no relationship with the child, there was no need for further inquiry to determine whether visitation would be in the best interest of the child.

In deciding this case, the court engaged in an extensive discussion of the law concerning grandparent visitation.

Analysis appropriately begins with the observation that "the courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one" (Matter of E.S. v P.D., see also Troxel v Granville,   

 In the absence of automatic standing based on the death of one of the child's parents, the court must make a threshold determination that the grandparent has "established the right to be heard" (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181 [1991]) by demonstrating the existence of "circumstances in which equity would see fit to intervene.”

Only after standing has been established is it necessary or permissible to "determine if visitation is in the best interest of the grandchild" see Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]). In exercising its discretion to confer standing on the grandparent, the court is obliged to "examine all the relevant facts" among which are whether the family is intact, "the nature and basis of the parents' objection to visitation," and "the nature and extent of the grandparent-grandchild relationship."

The Court was not persuaded by the grandmother’s argument that that reason she did have a relationship with the children was because she was prevented from doing so by the child’s parents. The Court distinguished a parent’s effort to frustrate visitation from an effort to protect the child.

In this case, the parents were justified in limiting the grandmother’s access to the grandchild.  For not only did the grandmother suffer from mental illness, which required repeated hospitalizations, she also disregarded orders of protection, requiring her to “stay away” from her adult children.

Under these circumstances, the Court concluded, “the parents' actions to prevent contact between petitioner and their child was legally cognizable as protective, not obstructive.”
 

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I am a firm believer that children should be able to enjoy a relationship with both parents. But, every once in awhile there is a case that leads me to believe that some children should never be allowed to be near their parents in an unsupervised setting.

This story, which appeared in the New York Times about an ex Minnesota Viking Darrion Scott is one such case.

The former Vikings defensive lineman Darrion Scott was charged with assault and accused of holding a plastic dry-cleaning bag over the head of his 2-year-old son. Scott, 26, was charged with third-degree assault and domestic assault by strangulation, both felonies. According to the complaint, the boy’s mother said Scott said he was playing with the child and wanted to see if the boy could get the bag off his head himself.

The first time I read the father’s defense I was certain I had mis-read it. Scott's  inane defense was that  he was playing with the child and wanted to see if the boy could get the bag off his head himself.

What was he thinking?

Most normal parents shudder at the mere thought of their child with a plastic bag over their head. This father actually admitted to putting a bag over his son’s head. I cannot fathom how this father should ever be permitted to be with his son or any other child in an unsupervised setting.

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Imagine a mother seeking to prevent children of the marriage from having visitation with their father in his home simply because he has a cat, particularly when there was no claim that the cat was vicious or endangered the children.

In Mandel v. Mandel, decided by a Nassau County court last week, a mother claimed that the children’s exposure to the cat in their father’s home posed a serious health risk to her and, as result, sought to limit the father’s visitation.

In the case, the mother claimed that she had to be hospitalized because she had severe allergic reaction to the cat. The father testified that, in order to protect the mother from exposure to the cat, the children would change their clothes either at the father’s home before returning to the mother’s home or immediately after returning to the mother’s home in her garage. The father also testified that the children were exposed to other dogs and cats in the homes of their friends.

The Court found that there was no precedent for excluding the children from the father’s home because the cat presented no risk to the children. The Court urged the children to continue take reasonable precautions to limit the mother’s exposure to the cat following the visitation their father.

I suspect that there was really something more going on in the case then whether the children should be around the father’s cat. In its decision, the court alluded to the fact, that the cat did not become an issue to the mother’s health until the father stopped paying the mortgage on the former marital residence now occupied mother and children.

But, like my mom always said, “Two wrongs don’t make a right.” Because the father may have done something that the mother did not like, the mother had the knee jerk reaction of attempting to restrict the father’s access to the children to gain some advantage.

What should give the mother some concern is that this decision is an interim decision and there will soon be a trial. If the court felt that this mother was using the issue of the cat and visitation to obtain advantage over the father, the mother’s strategy will have backfired. If, for instance, as a result of this application, the court felt the mother and was manipulative or lacked credibility, the result, at trial, could be devastating.

Hopefully, an amicable settlement is imminent.

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After I posted 10 Tips to Help Children of Divorce Deal with the Holidays, I was interviewed by Lawyers USA about the issues that crop up around the holidays about holiday visitation.

The article, written by Jason Rebello, can be viewed here, but a subscription is required.  Lawyers USA graciously granted me a reprint permission.

  With the holiday season fast approaching, family lawyers may find an unexpected complication in their clients' post-divorce lives.
Attorneys say that in many cases, both the husband and wife are in such a rush to finalize the separation that they may overlook how they will handle the holiday season.

According to a study by the Houston Chronicle in 2006, approximately one million children each year experience their first holiday season in the wake of their parents' divorce, and the consensus among lawyers in those cases is that the dynamic can take its toll not only on the children and their parents, but on the lawyers themselves.

Christine Bauer, a family law attorney in Orlando, Fla., claims that a lack of preparedness can put a serious damper on the holiday season for everyone involved.
 
"Judges hate dealing with these issues," said Bauer, who attempted to bring such an issue before a judge last year.

The case involved two unmarried parents who could not agree on where the child would spend Christmas.
 
"The judge decided that the regular visitation schedule fell on the father's time and Christmas was just another day," Bauer said.
The decision, naturally, did not go over well with the mother.

"The thing is, judges expect parents to behave like adults, and the general assumption is they should do what is right for their child," said Bauer.

                                        Think ahead

The biggest mistake divorced parents make, according to Bauer, is waiting until the last minute to decide where and with whom the child will spend the holidays. Most assume the matter will be covered in the marital settlement agreement, but Bauer said it should be brought up immediately after the assets are divided during the divorce
.
"So many people [during the divorce] say that they will work it out later, but then a week before Christmas is when people call me and say [they] don't know what they are doing."
 
Bauer said the way to alleviate this is to ask each of the parents to put their expectations in writing during the divorce proceedings. Which parent will have the child on Thanksgiving, which will have the child on Christmas, and so forth.
 
This is particularly important when parents live far from each other.
"You have to decide well ahead of time and be cognizant of the fact that it can be difficult to fly people around during the holidays. You split the time so everyone can celebrate on their own time," Bauer said.
 
Family lawyers agree that problems often arise when one parent decides at the last minute he or she wants the child on a day that is not spelled out in the agreement. Dan Clement, a solo divorce attorney from New York City, advises his clients to be reasonable and avoid bringing the matter into a courtroom.
 
"You will have to see what the real relationship is between the parent and child," said Clement. "Is there any reason why the non-custodial parent shouldn't have time over the holidays? Assuming the mother had a child over one holiday, a judge won't see a reason why the dad shouldn't for the other."
 
            Ensure clients understand agreement

One common scenario around the holidays is that the custodial parent finds an excuse at the last minute not to allow the child to be seen by the non-custodial parent.

"There's always a nervous one on pins and needles," said Clement. "Clearly the one who has custody of the child controls whether the non-custodial parent will see the child. It's not uncommon for Johnny to suddenly have a cold or wake up with a 102-degree fever the morning of [visitation]."

To alleviate that potential complication, Clement advises attorneys to ensure both parties are clear not only on the agreement, but on potential penalties if a parent does not adhere to the agreement, up to and including a long-term loss of visitation. But he noted that this is little consolation to the non-custodial parent on the day in question.
"[Non-custodial parents] can buy plane tickets and make hotel reservations, but the fact is they won't know if they're going to see their child on that day until they see them. It's a tough situation because they have their heart set," Clement said.

                    Propose sharing the holidays

Janet Langjahr, a divorce and child custody attorney practicing in Boca Raton, Fla., said the ideal scenario in a benign separation is for the parents to spend at least part of the holiday together, so the whole family is together.
 
"The first holiday after separation can be very difficult for a child," said Langjahr. "If the parties still live close together and can act in a civil fashion, then it's best for the kids if the parents are each at least celebrating part of the holiday with them."

Langjahr said sharing the days can take a lot of the burden off an attorney as well, but is something that must be considered early in the divorce proceedings, preferably at the point when the temporary order is entered.
 
"That's when you hear the restrictions on comings and goings [of the parents]. The first thing you have to think about is, 'Have any restrictions been put on my client?' If they have, it would be prudent to go to court and prevent them before a trial."

                Supervised visitation

In some cases, one or both of the parents requires supervision when with the child. On holidays, however, parents could run into trouble if supervisors or therapeutic trainers have time off.

"There has to be some kind of structure in place, depending on the degree of dysfunctionality," said Langjahr

Langjhar's suggestion: employ a trusted friend or relative agreed upon by both parties to replace a professional supervisor. However, Langjhar tempers this suggestion with a warning that in more extreme circumstances of abusive behavior or psychological problems, a professional supervisor or hospital setting should be utilized no matter what.

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Divorce, visitation and holidays-three things, that when combined, raise divorced parents’ blood pressure and put a lot of stress on their children. There are some things you can do to  make the holidays a little more bearable.

The Divorce Law Journal highlights ten tips to help children enjoy the holidays:

• Give your children permission to love the other parent. Help your child make a card for Dad or buy a gift for Mom. Encourage them to call the other parent.
• Set realistic expectations. To divide or share a holiday, each parent will have only half as much time with the child. While children may enjoy multiple celebrations, most do not care that the festivities are actually on “the” day. Holidays can be alternated by year and if Mom does not have Thanksgiving with the child this year, bake a turkey the preceding weekend.
• Coordinate gift giving. If a child has a wish list, split it with the other parent. Resist the temptation to over-indulge the child with gifts. Do not give the child a gift you know the other parent is planning to give. If the other parent will not cooperate, do not complain to the child.
• Do not use your children as messengers. The decision of where to go and when should be decided by the parents. Permitting the child to choose time with one parent is a burden and vests the child with inappropriate power.
• Do what you say you are going to do. Pick up and drop off the children on time. Do not request last minute changes.
• Never let a child hear you disparage the other parent.
• Resist the temptation to permit your child to act as your caretaker.
• Do not uproot your children if at all possible.
• Reassure your children that the divorce or separation is not their fault and encourage  them to call the other parent.
• Permit your child to see and love grandparents, aunts, uncles, and cousins on the other parent’s side of the family.

Above all, be unselfish. Put your children’s needs above your own desire to be with them. The best gift you could give your children may be to allow them to enjoy a stress-free, drama-free holiday.

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The New York Law Journal (subscription required) reported that the parents of a victim of 9/11 were denied visitation with their grandchildren. I posted a couple of times in the recent past on the issue of grandparent visitation.

According to the article in the Law Journal, after the death of the father, relations between the grandparents and the mother became strained and the mother limited the children’s visits with their grandparents.

The Domestic Relations Law has provision for grandparents to seek visitation with grandchildren following the death of a parent. Visitation will be granted if it is found to be in the best interest of the child.

In this case (Smith v. Smith), Family Court Judge Carnell Foskey found that it would not be in the children’s best interests to have visitation with the grandparents.

There was an incident when [the grandmother] put dog collars around the children’s neck and pretended to walk them down the hall like dogs. In July 2003, the grandmother hit [one of the grandchildren] for not cleaning up her crayons.

The grandparents clearly exhibited behaviors which made it questionable whether they should be allowed to have visitation with the children. Given the reported strained relations with the in-law and questionable conduct, a limitation or complete termination of visitation may have been appropriate.

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I have returned from my vacation, schools back in session and summer is, for all accounts over. So, I am back to bloggging on a regular basis.

One of the most common post-divorce scenarios is that the custodial parent wishes to relocate and the move will negatively impact on the other parent’s relationship with the child. The Nassau County Family Court in the case Mr. G. v. Mrs. M (New York Law Journal, 8/28/07 (subscription required) provided a excellent primer on the subject and in doing so, denied a mother’s application to move with her child to Virginia.

As laid out in the leading case of Tropea v. Tropea, the issue is to be determined as is in the best interest in the child. In doing so, the Court is to consider the following criteria:

1.Each parent’s reason for either seeking or opposing the relocation;


2.the current state of the relationship between each parent and the child;

3.the impact that the relocation will have on the quality and of the child’s relationship with the non-custodial parent;

4.the emotional, economic and educational effects that the move will have on the child; and

5.the feasibility of maintaining the relationship between the child and non-custodial parent.

The trial court must weigh all of the factors and determine not what would be best for the parents but, rather, what is in the best interests of the child.

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The Appellate Division granted a grandmother visitation with her grandchildren in the case In the Matter of Carol Steinhauser.

Of significance, the Court noted that  that mere animosity between the children’s father and his mother-in law was not a sufficient basis for denying visitation. In the brief opinion, the Court, after detailing the two pronged-inquiry for considering a grandparent’s petition for visitation,concluded that visitation would be in the best interests of the children.

"When grandparents seek visitation under [Domestic Relations Law] section 72(1), the court must undertake a two-part inquiry. First, [the court] must find standing based on death or equitable circumstances'; and if [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild'" (Matter of E.S. v P.D., 8 NY3d 150, 157, quoting Matter of Emanuel S. v Joseph E. L., 78 NY2d 178, 181). "[T]he courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one" (Matter of E.S. v P.D., supra at 157). "[W]hile . . . the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation" (Matter of E.S. v P.D., supra at 157). " The question of visitation, which involves a determination [*2]of what is in the child's best interests, is left to the discretion of the court'" (Matter of Poppe v Ruocco, 37 AD3d 608, 609, quoting Matter of Weis v Rivera, 29 AD3d 812, 813; see Lo Presti v Lo Presti, 40 NY2d 522, 527). "An essential part of this inquiry is whether a meaningful relationship exists between the petitioning grandparents and the child" (Matter of Weis v Rivera, supra at 609; Matter of Principato v Lombardi, 19 AD3d 602, 603). The Family Court's determination concerning whether to award visitation " depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents'" (Matter of Thomas v Thomas, 35 AD3d 868, 869, quoting Maloney v Maloney, 208 AD2d 603, 603; see Matter of McMillian v Rizzo, 31 AD3d 555, 555). "Therefore, it should not be set aside unless it lacks a sound and substantial basis in the record" (Matter of Thomas v Thomas, supra; see Matter of Keylikhes v Kiejliches, 25 AD3d 801, 801).

Here, the death of the children's mother provided the maternal grandmother with automatic standing to seek visitation, although it did not guarantee any such award (see Domestic Relations Law § 72[1]; see also Matter of Principato v Lombardi, supra at 602). The evidence established that the maternal grandmother enjoyed a meaningful relationship with the children. Additionally, the existence of animosity between the maternal grandmother and the father was not a proper basis for the denial of visitation to the maternal grandmother (see Matter of Weis v Rivera, supra). The Family Court improvidently exercised its discretion in finding that it was not in the best interests of the children to have any visitation with their maternal grandmother. We therefore remit this matter to the Family Court, Suffolk County, to set up a schedule of appropriate supervised visitation.

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After taking a short, but much needed vacation, I am back and ready to blog.

The Family Law Prof Blog reports that "A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son. The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother. Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection. Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said."

Fausey said the court ruling violated his constitutional right to make parenting decisions, an issue the  Supreme Court did not address.  State courts are divided on the issue. Twelve states prohibit courts from ordering grandparent visitation unless it can be shown that the child would be harmed by their absence, Fausey's lawyers said in court papers filed in the case Fausey v. Hiller, 06-863.


As I recently noted,  the New York Court of Appeals recently upheld the validity of  New York's  law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren.

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The Court of Appeals in Matter of E.S. v P.D., unanimously upheld a constitutional challenge to New York’s grandparent visitation law.    

In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville (530 US 57 [2000]).

The statute invalidated in Troxel permitted "'[a]ny person' to petition for visitation rights 'at any time,' and authorize[d] that court to grant such visitation rights whenever 'visitation may serve the best interest of the child'" (Troxel, 530 US at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent "the burden of disproving that visitation would be in the best interest" of her children.

The New York Statute, on the other hand, presumes that the parent’s wishes represent the best interests of the children.  The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.

Section 72(1) of the Domestic Relations Law states that

"[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child."

Section 72(1) "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek [*5]visitation with a minor grandchild" (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. "First, [the court] must find standing based on death or equitable circumstances"; and "[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" (Matter of Emanuel S., 78 NY2d at 181

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Continuing with a trend to penalize parents who interfere with visitation, the Appellate Division, Second Department in Adams v. Perryman, modified a joint custody agreement and granted a father sole custody of their children because the mother thwarted the father's efforts to have meaningful visitation.

While the Court's decision does not detail exactly what the mother did, the decision evidences that there is a growing judicial intolerance of one parent interfering with the other parent's visitation rights.

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A court ruled that it was “a no-brainer” to deny a mother’s visitation request to force her children to spend the summer with her in Florida since she abandoned her family and took up residence with a convicted felon. The Court said visitation would not be in the best interests of children.

In LG v. JG, the mother sought to compel her children to travel to Florida to visit her in the home she shares with her boyfriend, a convicted felon. The court shared the father’s concern that the new boyfriend was “a general undesirable,” who should not be in contact with young children. 

Moreover, the Court found that the children were quite bitter towards their mother since she, without explanation, abandoned them.

Justice Pastoressa ruled that “it is the best interests of the children which controls, not the personal preferences, convenience of one parent vis-à-vis the other.” Since there would be no way of preventing the boyfriend from being in contact with the children if they were compelled to visit the mother in Florida, the Court ruled that it was clearly in the children’s best interests to deny visitation with the mother in Florida.  

The Court noted that the father was open to the mother seeing the children in New York.

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In two recently decided cases, custodial parents were penalized for interfering with visitation and attempting to alienate children from the non custodial parents. In one of the two cases, a mother lost custody of her child; in the other case, the mother was found in contempt and risked further consequences if the conduct continues.

In Chase v, Chase,  a mother’s continued false accusations that the father was a pedophile, compelled the Appellate Division reverse a Family Court finding that granted custody to the mother. 

The Appeals Court’s finding that the mother failed to produce the child for visitation, made repeated false and unsubstantiated claims that the father sexually abused the child, and repeatedly disobeyed various court orders warranted a change of custody. As a consequence of the mother’s conduct, the Court granted the father custody of the child.

In another case recently decided by the Suffolk County Family Court (Frank G. v. Carol G.), a mother was found to be in contempt of court for her failure to abide by the visitation provisions incorporated in a judgment of divorce. 

In both cases, the courts were particularly upset by the fact that the mothers, by their own admission, acted as the sole arbiters of what was the best course of conduct for their children.  Both mothers knowingly and intentionally disregarded court orders providing for the fathers’ visitation. 

Both courts reiterated the axiom that interference with the relationship between a child and the non-custodial parent by the custodial parent has said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent.

While the holdings of these two cases evidence a judicial hostility to the custodial parent’s attempts to alienate a child from the non-custodial parent, the facts unfortunately show that the non-custodial parent has a long and difficult course to enforce their visitation rights.  

Since requests for a change in custody  are, quite properly, closely scrutinized, a custodial parent accused of interfering with the non custodial parent’s visitation is frequently given gentle slaps on his/her wrists before facing the consequence of being held in contempt or losing custody.

I

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A biological mother, who relinquished her paternal rights to her infant child, was granted the right to have visitation with the child.   As part of the surrender, the mother expressly reserved her right to see the child four times a year and to exchange cards and letters with the child.

The Suffolk County Family Court in the case of Mary M.O. v. Doe opined it was within the court’s purview to scrutinize whether it would be in the best interests of the child to allow the biological mother to have continued contact with the child. 

 The Court noted that the biological mother expressly conditioned the surrender on having continued contact with the child and that she maintained a relationship with the child for as long as she could until her efforts were frustrated by the department of social services and the adoptive mother.     

The Court found that the child was aware that the petitioner was her biological mother and that a cessation of visitation could result in long term feelings of distress and abandonment.  On the other hand, the Court found that continued visitation would convey a positive message to the child that the biological mother really cared.  

Significantly, there was no showing that the biological mother was in any way unfit or had acted inappropriately towards the child. 

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This headline caught my eye:  Boy Tarzan's ma takes swing at dad in divorce.

 "The teenage star of Broadway's "Tarzan" was hurt so much by a bitter feud between his parents it sent him into intense therapy sessions."

"But the pain of talking about the vicious sparring was too much for 13-year-old Daniel Manche, who asked to drop out of the counseling - and to stop seeing his dad, his mother Dawn Manche testified yesterday.

Daniel, who plays Tarzan as a young boy in the Disney musical, is at the center of a nasty custody battle being fought by his divorced parents in Manhattan Supreme Court."

Unfortunately, this is not an isolated case. It is the children who often bear the scares of a bitter divorce battle. In the best of situations, the parties agree that they cannot stay married, but work together to foster the best interests of the children.   However, in the worst of situations, the parties fight over everything, including the children. The children of a marriage merely become pawns in their parents’ battle. 

Minor visitation schedule modifications become epic battles; fights erupt over a drop-off and pick-up time for visitation. In the most egregious cases, one parent openly bad mouths the other parent to the children.  How could a child not become alienated or depressed? 

Every judge admonishes the litigants that the children have two parents and that the children have the right to enjoy the love and attention of both parents. It is sincerely hoped that parents put their differences aside and do what is necessary to support and foster relationships with their ex’s.   The alternative is, I am afraid, a country of depressed alienated children, who will one day promulgate their ills when they, one day, become parents.

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Memorial Day is the unofficial beginning of summer. But, from a family law attorney’s perspective, summer began a long time ago.

Some time before they purchase the sun screen, parents need  to make arrangements to plan for their children’s school vacation, summer camp and extended vacations away from home. However when the parents divorce and get to spend only a part of the summer with their kids, things can heat up real fast.

In order to facilitate a peaceful  summer, divorced parents will need to cooperate with each other. Unfortunately, as the temperature rises, so does the acrimony as the parents fight over who will be with the children for the month of July and who will be with the children in August.   If the parents cannot cooperate, rather than having fun under the sun with their children, they will spend the summer in a courtroom with their lawyers and a judge.

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