Visitation

As a matrimonial lawyer, I often get the question "how old does a child have to be to decide who they get to live with?"  There is a perception out there that there is a magic age where a child is empowered to decide which parent they get to live with.  This simply is not the case. 

Rather, a child’s preference is only one factor a court must consider when deciding custody.  Why is the child’s preference not absolutely determinative?  Because it is not always reliable and may not be in their best interests.  Maybe the child is too young or too immature for their preference to be relied upon alone.  Maybe one parent is improperly influencing or pressuring a child to express a preference that is not their true preference.  Maybe the child feels bad for and/or feels the need to take care of the parent because of some physical or mental infirmity of the parent or a feeling that the parent is the victim of the other parent.  Perhaps the child has been promised something by the other parent or is trying to play one parent against the other.  Perhaps the child (maybe a teen) feels that the other parent will give them more freedom. 

This issue becomes even more difficult after an initial custody determination is made or agreed to and then a child expresses a preference to live with the other parent.  That was the issue in the unreported (non-precedential) decision in the case of Traynor n/k/a Dallara v. Traynor decided on March 29, 2011.  In this case, the father appealed the denial of his motion to change the custody of his 11 year old daughter who allegedly decided that she wanted to live with him.Continue Reading Just Because a Child Says They Want to Live with the Other Parent Does Not Mean that Custody Should be Changed

Following on the heels of Eric Solotoff’s recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator’s involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff’s indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator’s indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator’s fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff’s grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.Continue Reading NEW APPELLATE DIVISION DECISION REGARDING PARENTING COORDINATOR GRIEVANCES AND FEES