Taking into Account Children’s Wishes in Custody Cases

Middlesex County Child Custody AttorneyIn a recent New York case, the Appellate Division, First Department, ruled in Melissa C.D., Rene ID that a Manhattan Judge erred in awarding sole custody of a separated couple’s daughter to the mother largely on the basis of alienating comments. In a unanimous appellate panel ruling, the Court found that the Judge should have given more weight to the mother’s behavior and the daughter’s own wishes.

In the case cited , the estranged couple had three children, a five year old daughter, a 14 year old daughter, a 17 year old son. The mother, left the marital home with the 5 year old daughter, leaving the son and older daughter in the care and custody of the father and in the family’ marital home. The court, after subsequent application to the Court by the mother awarded sole custody of the 5 year old and 14 year old daughter to the mother largely on a finding that the father had alienated the older children from their mother by making strong negative comment(s) about her to the children. This custody award was in contravention of the desire of the 14 year old daughter, whose preference was to stay with her father and brother in her home.
There are few issues as disturbing and difficult to deal with as a Judge, as well as a family practitioner as the issue of parental alienation. Making a determination as to who is at fault, even if the Court has damaging audio tapes and emails is time consuming and frustrating. The issues that give rise to the negative rants of the parties are the result of anger, hurt, and disappointment going back years. To unravel and try to diffuse the ongoing retribution attempts by the parties tries the patience of even the most even tempered professionals.

In this case however, the higher Court took what appears to be the higher ground and better approach. Rather than try to punish the father for his alienation attempts, the court chose to weigh all the factors that would better serve the best interest of the 14 year old and her wishes. The Court found that to take her out of her home and environment where she was comfortable and safe and put her in her mother’s home with her mother’s lover and younger sister, another strange home, where she had no friends or support, against her will, would not serve her best interests.

Sometimes the only way to combat the poisonous venom of parental alienation is give the child a safe place to live through it all with the necessary support systems the child needs to survive. In this case, the NY Court took the time and patience to make the difficult decision to do right by this child, and respect her wishes.