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J.R. v. M.S.

Supreme Court, New York County

May 5, 2017

J.R., Plaintiff,
v.
M.S., Defendant.

          For the Plaintiff Aronson Mayefsky & Sloan, LLP

          For the Defendant Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP

          MATTHEW F. COOPER, J.

         One of the more encouraging developments that I have observed as a judge sitting in a matrimonial part in New York County is an increased willingness on the part of divorcing parents to attempt to work together to cooperatively raise their children. And even if real cooperation is not possible, there is often recognition by the parties and their attorneys that provisions should be made to allow both parents to participate in the child's upbringing to the greatest extent possible.

         This trend towards the inclusion of both parents in the parenting process might be attributable to the changing views of what it means to be a parent - with fatherhood no longer relegated to an inferior position to motherhood. Or it might be reflective of what has become the almost universally held belief that children are generally disserved by having either parent - be it a mother or a father - playing only a peripheral role in their young lives.

         Whatever the reason, the result is that the vast majority of custody disputes that come before me are ultimately resolved without a trial by the parties agreeing to a parenting plan. In almost every instance, the parenting plan provides for some form of shared decision-making. This arrangement, which is commonly referred to as "joint custody" or "joint legal custody, " enables both parents to have a real say as to what happens in their child's life.

         In its purest form, shared decision-making calls for all major decisions to be made collectively by both parents. In other instances, each parent is assigned specific areas - often referred to as zones or spheres - where he or she has final decision-making authority. And then there are hybrid provisions, which, for instance, call for decisions to be made jointly but allow a third-party professional, such as a parent-coordinator, educational consultant, or pediatrician, to cast the deciding vote in case of a parental deadlock.

         There are, of course, situations where shared decision-making, no matter the form, is neither possible nor desirable. These include cases where a parent lacks basic parenting skills, where there has been unacceptable conduct such as domestic violence, or where there is untreated alcoholism or other substance abuse. The presence of mental illness or personality disorders, depending on the type and severity, might also prove to be an impediment to co-parenting, as would a parent's failure to demonstrate the necessary level of commitment or ability to do what is best for the child. A child's mental or physical disability, poverty or financial stress, or a parent living far from where the child resides are additional factors that can play a role in determining whether co-parenting will ultimately be workable. If one or more of these factors are present, vesting decision-making in one parent may be the only option to promote and protect the child's best interest.

         This is a custody dispute that one would think could readily be resolved by the parties agreeing to a form of shared decision-making. None of the factors that militate against co-parenting are present. In almost all respects, the situation appears ideal for it to work. For example, both parties are intelligent, educated, involved, loving parents, each of whom has more than adequate parenting skills. Their child is a healthy and well-adjusted 10-year-old boy who is happy at the prestigious private school he attends, and although more closely bonded with the mother, certainly wants the father to be part of his life. Both parents' households are located in close proximity to each other, and there are more than ample financial resources with which to pay for family therapists, parent coordinators and other professionals to assist in the process.Despite all the factors favoring a co-parenting arrangement, there is one flaw, at least from the mother's perspective, that calls into question whether shared decision-making is feasible in this instance: the father's vexatious personality. According to the mother - and others in the father's professional and personal life - he can be argumentative, contentious and rigid. It is the mother's position that because the father can be so difficult to co-parent with, she should be awarded sole decision-making authority over all spheres, and by implication, be deemed to have sole custody of their child. The father, while conceding that joint decision-making is not viable, argues that he and the mother should each have final decision-making authority over specified zones, and by implication, they both should be deemed to have joint custody of their son. [1]

         The key issues to be determined in this post-trial decision are whether it is in the child's best interests to vest all final decision-making authority with the mother, and, in effect, make her the sole custodial parent. There is also a secondary issue as to whether the father's parenting-time with the child should be modified from what it has been since the parties' separation more two and a half years ago.

         I. Background and Trial Testimony

         The parties were married in 1999. Their only child, a son, was born in 2007. Although the parties, both of whom received an MBA at Wharton, attained great professional success and together lived a privileged Manhattan lifestyle, never seemed to have enjoyed being married to one another. The tensions in the relationship only intensified after the birth of the child in 2007, and neither marital therapy, nor the services of a parent coordinator, proved to be helpful. In 2013, the father revealed he had been engaged in another relationship and that he was seeking a different type of life than the one he could have with the mother. After this announcement, the parties decided to separate.

         In January 2014, the father commenced this divorce action. In September 2014, the parties entered into an agreement setting forth an interim parental access schedule. Shortly thereafter, the father moved to his own apartment. For the next two years, the parties attempted to agree on a parenting plan. There were countless settlement conferences, both in court and out, and numerous draft agreements exchanged and redlined. Unfortunately, this effort was to no avail, and the parties were unable to reach a compromise.

         Notably however, there have been relatively few problems with either the interim access schedule or decision-making during the course of this litigation. In fact, the only disputes that I am aware of concerned which sports programs the child was going to be enrolled and how many weeks he would attend summer day camp. There have been no problems with the child's education, as he is thriving at a school that he will be able to attend through 12th grade, and there are no issues concerning his medical care, as he is doing well under the care of a mutually agreed-upon pediatrician and child therapist. In short, the parents, while fixating on relatively inconsequential matters in their child's life, have somehow managed, despite their differences, to successfully raise him to this point.

         The trial that ensued took place over a number of days in the late summer and fall of 2016, with post-trial briefs submitted at the end of the year. The witnesses were the parties, the person who briefly served as a parent coordinator and later as a consultant to the father, and the psychiatrist appointed by the court to conduct the forensic custody evaluation. Following the conclusion of testimony, I met with the child, accompanied by the attorney for the child, in an in camera proceeding known as a Lincoln Hearing. [2]

         The key witness was the forensic psychiatrist. In his forensic report, prepared in the fall of 2015, and in his testimony, he provided examples of the father's rigidity and idiosyncracies, and articulated how making decisions jointly would be an ordeal for the mother because of the father's difficult, often combative, personality. The forensic, however, was clear that both parents possess the "basic skills and knowledge to be more than competent parents, " and that, although the father was "rigid about his beliefs, " his "parenting skills are nevertheless well within the range of normal."

         Although the forensic psychiatrist largely focused on the father's various personality deficiencies, he identified flaws on the part of the mother as well. For instance, he pointed out that, at times, she too can be rigid, has a tendency to be "somewhat overprotective" of the child, and is "angry and resentful" towards the father. Nevertheless, he concluded that because the mother is more sensitive to the child's needs, more able to give consideration to the other parent's views, and because the parents cannot "work together, " the mother should have final decision-making authority in all areas. In his report, he did not address the question of zones of decision-making, but in his testimony he stated that while employing zones might "incentivize" both sides to be inclusive in the decision-making process and prevent a parent from being marginalized, he felt that it would give rise to problems because "one could be handled in radically different ways than the other" and because decisions do not always fall neatly into one zone or another.

         The former parent coordinator testified as a witness for the father. He was apparently called to express his view that the parent coordination process would have worked had the mother been willing to continue with it and had she been less angry with the father. The testimony was of limited value in that the parent coordinator was clearly aligned with the father, whom he later worked with on an individual basis without notifying the mother. He also admitted on cross-examination ...


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