The Domestic Relations Law sec. 240(1) provides that the trial court’s award of child custody must be made as justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child, noting that in all cases there shall be no prima facie right to the custody of the child in either parent. However, a New York Family Lawyer said an appellate court would be seriously remiss if it allowed a custody determination to stand where it lacked a sound and substantial basis in the record and, indeed, was contrary to the weight of the credible evidence.
The plaintiff wife and defendant husband were married in 1974 while attending nursing school and medical school, respectively. During their marriage, they had twin daughters whose custody has been the subject of this action. The record established that in 1982, the husband established his private practice in pediatrics and his income grew steadily thereafter. The wife in 1983 became a nurse investigator for a law firm which entails more flexible hours.
During the trial, the court requested psychiatric evaluation of all family members, as well as the evaluation by the Nassau County Probation Department. A New York Criminal Lawyer said the evaluation specifically recommended that the wife be granted custody of children. However, the Supreme Court awarded the twin daughter’s custody to the defendant husband. The Court concluded that the wife has been more or less a ‘remote control’ mother, having an interest in her children’s welfare, but leaving the actual rearing, at this point in their lives, to the father and a housekeeper. The Supreme Court based its findings with the record that reveals that the wife’s hours spent in pursuit of a career outside the home are decidedly fewer and more flexible than those spent by the husband.
The plaintiff wife filed an appeal from the Supreme Court’s decision claiming that she is the appropriate custodial parent and that the court, in weighing the parental capabilities of the husband and wife, did not apply gender-neutral standards.
On appeal, the Supreme Court, Appellate Division reversed the decision and granted the wife custody of children.
According to the appellate court, in enacting the “best interests of the child” test, the legislature expressly rejected the idea that either fatherhood or motherhood alone carries with it a superior right to custody (Domestic Relations Law sec 70, 81, 240). A Nassau County Family Lawyer said the statutory declaration that there is no prima facie right to the child custody rejects the notion that there is an inherent custodial preference for either parent.
The appellate court reiterated that custody determinations must be born of gender-neutral precepts in both result and expression. It stated that for a variety of reasons, mothers as well as fathers of even young children are, or must be, gainfully employed. That being so, the custody-seeking mother who works outside the home should not be penalized for her employment, any more than should the father. The Court said that if a mother is held to a more rigorous standard, the legislative presumption of gender neutral custody determination, and with it, the “best interest of the child” test, is upset. In short, the wife, who is employed, should not thereby suffer in her chances for custody any more than should the husband, lest the wife feel compelled to give up her source of income and risk not only financial woe, but a court’s finding that her former husband’s stronger economic condition is more congenial to the child’s best interests.
Further, the appellate Court cannot see any reason why the court disregarded the evaluation by the Nassau County Probation Department recommending that the wife be granted custody of children. A Queens Family Lawyer said the appellate court stressed that these investigators were the only disinterested individuals who had examined both parties and the children based on a full exploration of the parties’ lives and problems.
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