The petitioner and respondent are the parents of a nine (9) year old child. The parties obtained a judgment of divorce in New Jersey on June 13, 2003 and, on consent, were awarded an order of joint legal custody for the child.
The father filed a violation petition and a petition for modification of the custody order on April 25, 2007. The father was seeking a specific and expanded visitation schedule. By stipulation the parties resolved the visitation issues between them prior to trial.
The mother had filed a petition to modify the custody order to provide for sole legal custody of the child on May 6, 2008. A trial was conducted in Kings County Family Court for the sole purpose of determining whether the existing order of joint legal custody should be modified to award sole legal custody to the mother.
The Court heard direct testimony of the mother as well as the testimony of the psychologist assigned by the Court to prepare a forensic evaluation. After the conclusion of the mother’s direct case and the testimony of the father’s attorney made an oral application to dismiss the petition for failure to make a prima facie case. The matter was adjourned to afford an opportunity to the respective counsel to argue the motion and to cite any relevant case law. After argument, the motion was granted and the mother’s petition was dismissed for the reasons set forth below.
A Queens Family Lawyer said is not disputed that the parties agreed to joint legal custody in the 2003 divorce. The mother’s petition alleges that the father has failed to cooperate in a constructive manner and, therefore, has made the joint decision making (allegedly) impossible. As such, the mother must prove a sufficient change of circumstances to modify the order now in effect. The burden, as the proponent of the change of circumstances, is clearly on the mother in this case.
The respondent mother offered many specific instances in which she had concerns about the child’s stomach aches and other digestive issues and general health concerns. These instances were well documented by e-mail correspondence between the parties and the mother sought to show that the father would not respond immediately or approve a certain medical procedure in a timely manner. However, each instance of tardiness or delay was addressed by the father’s attorney on cross-examination and the Court cannot, on an objective basis, consider his conduct to be inadequate or dilatory or contrary to the continuation of joint decision making by these parties.
The respondent mother, in this Court’s opinion has an unrealistic view of the concept of reasonable decision making and has chosen to impose her unrealistic expectations upon the father. The mother has asserted that the child required serious medical procedures and was in need of a series of diagnostic tests which would require careful consideration by any parent. The father according to the record wanted to consider these steps and explore whether the procedures were in fact necessary. In several instances the procedures were not necessary and the doctors eventually concluded that the child had no serious medical problem.
Similarly, a good portion of the mother’s direct case was centered on making educational decisions for the child. These decisions were often rushed or unrealistic proposals. T This Court has considered the mother’s allegations even in a light most favorable to the mother’s position, and cannot find that there is any persuasive evidence to support changing the current custody order.
As a general matter, there should always be an effort by parents to conduct themselves in a conscientious and considerate manner when it comes to decisions affecting their child. However, parties have to accept a basic reality that cooperation requires both parties to act reasonably and that small delays or set-backs are not grounds for eliminating the participation of one parent in decision making.
In this case the alleged difficulties do not meet the legal requirements needed to change the order of joint custody and as a result the mother’s petition for modification is dismissed.
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