Sole Custody's Soul, As Viewed by a Psychologist

In an article entitled “Court of Appeals to Decide the 'Soul' of Sole Custody,” appearing in the December 2008 issue of The Matrimonial Strategist, Robert Dobrish offers commentary on the importance of an anticipated ruling from the NY Court of Appeals in Fuentes v. Board of Education of the City of New York. Dobrish expresses the hope that the Court of Appeals will “decide whether a noncustodial parent has the right to participate in educational decisions relating to a child where the divorce decree and custody order do no more than grant sole custody to the other parent.”

I share Dobrish's hope that the court will provide a clear decision, but I also hope that, in doing so, the court will appreciate the wisdom that has characterized earlier decisions in such cases as Braiman v. Braiman, 407 N.Y.S.2d 449 and Tropea v. Tropea, 642 N.Y.S.2d. 575. In both these decisions, the emotional needs of parents were subordinated to the emotional needs of children, as should occur in all such cases.

Another Point of View

It is unlikely that Dobrish would include in his article either information or commentary that he viewed as irrelevant. I infer, therefore, that when Dobrish observes that “a parent's perception that involvement (responsibility) in the process of decision-making somehow elevates that parent's image and gives that parent power,” he is suggesting that this is a pertinent consideration. I disagree. Parental concerns with such issues as “image” must be seen by our courts for what they are: distractions. In cases involving custody and access, our courts are obligated to focus on the best interests of the children whose parents have brought the disputes to court.

Key Relocation Rulings

In the 1996 decision by the Court of Appeals in the jointly examined relocation cases of Tropea v. Tropea and Browner v. Kenward, the court observed that “[l]ike Humpty Dumpty, a family once broken by divorce cannot be put back together in precisely the same way” (at 581). The joint parental decision-making that is characteristically found in a healthy marriage cannot be duplicated once that marriage has been dissolved. The court also observed: “Children are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests ' ” (at 582). I infer that the court has concluded that even where a proposed apportionment of parental rights and responsibilities is unfair to one of the parents, if it is an apportionment that best suits the needs of the children, it should be implemented. In some cases, the apportionment most likely to serve the interests of the affected children is one in which one parent holds all significant decision-making authority.

Joint Decision-Making

Patterns of constructive joint decision-making in the pre-divorce period are likely to be the best predictors of post-divorce constructive decision-making.

Even people with an abiding respect for the law cannot learn to cooperate with one another simply because they have been directed to do so by a court. It defies logic to anticipate that people who, during their marriage, were unable to cooperate for the sake of their child will somehow find the ability to do so out of respect for a judicial decision.

Chief Judge Brietel, in writing for a unanimous Court of Appeals in Braiman, observed that joint custodial arrangements “imposed upon already embattled and embittered parents ' can only enhance familial chaos” (at 451). The same observation could be made concerning a decision that might redefine “sole custody” in such a manner as to preserve decision-making rights for non-custodial parents.

This brings us to two of the entries on the very short list of issues concerning which almost all mental health professionals are in agreement. One of these was alluded to by Dobrish. Among mental health professionals, there is little dispute that, as Dobrish wrote, “it is generally in children's best interests to have both parents involved in their lives, except in the most extreme cases.”

Item Number 2 on the short list of issues concerning which mental health professionals are in general agreement is the damaging impact upon children of ongoing post-divorce disputatious behavior between their parents. The effect upon children is most dramatic when the issues in dispute are those that directly involve them. Dobrish has written: “Even the award of sole custody to one parent does not preclude an important role for the non-custodial parent in the child's life.” I concur.

Dobrish correctly points out that “the nomination as custodial parent brings with it various legal entitlements that are not only significant but also, in the hands of a vengeful, vindictive or irresponsible parent, capable of doing mischief.” Since I no longer perform custody evaluations, I can comfortably endorse the use by the court of skilled mental health professionals. Though no one can boast an error-free track record, skilled mental health professionals performing custody evaluations should be able to opine responsibly on which parent, if awarded sole custody, is more likely to facilitate actively the maintenance of a healthy relationship between the child(ren) and the non-custodial parent and manage constructively whatever spousal anger is still being experienced. Our laws do not prohibit former spouses from remaining angry at one another, but there is provision in the law for altering custody/access plans that are being utilized by custodial parents as vehicles for vengeful, vindictive, or irresponsible actions with negative implications for the children.

In commenting on the unwritten “'No Micromanagement Rule,'” Dobrish has written: “Judges are regularly asked to intercede in matters of parental disagreement that, on the surface, appear to be best resolved in some other manner. There have been reported decisions relating to whether a parent may smoke cigarettes, drink alcohol or maintain a pet in a child's presence.” Clearly, I have no knowledge of the assertions that were made by the parties who brought these matters before the court; however, each of these issues is one with clear implications for the best interests of the child. The effects of second-hand smoke have been documented. Alcohol, if consumed to excess, transforms a normally vigilant parent into an impaired supervisor of a child and transforms a normally competent driver into someone ill-equipped to transport a child to an emergency room. Certain childhood allergies are significantly exacerbated when the effected children are in prolonged contact with certain pets. The presentation of such issues to a court does not constitute a request that the judicial system micromanage the upbringing of children.

Not a Broken Concept

The current concept of sole custodians as sole decision-makers is not viewed by me as a broken concept in need of fixing. Questions raised by Dobrish, however, make it clear that it is a concept in need of clarification. Dobrish asks how (if at all) courts should address actions by non-custodial parents that include permission given to children for haircuts, piercings, tattoos, viewing of adult material, late bedtimes, and nude bathing on a beach. It is easy to criticize our courts and I plead guilty to being among those who have leveled various criticisms; however, as we contemplate the issues brought to our attention by Dobrish, fairness demands that we consider the Sisyphean task imposed upon courts handling custody/access disputes. We are asking that judges develop means by which society can prevent parents whose concern for their children's best interests is deficient from causing significant harm to their children.

Suggesting that the court might offer clarification was effortless. My suggestion is offered with recognition that no court, however prescient it might be, could foresee and address in advance all the petty issues concerning which one parent might bring another to court. However, the Court of Appeals might be able to assist the lower courts by offering examples of inconsequential decisions that non-custodial parents might make while children are in their care and contrast those with examples of decisions of consequence that should not be made by non-custodial parents, particularly when it should be clear that the decisions that the non-custodial parents wish to make are in contravention of decisions that custodial parents have already made or would be likely to make.

A rational and unselfish non-custodial parent recognizes that the long-term well-being of a child is best served when the parental authority of the custodial parent is supported, not undermined. Just as judges are obligated to act in accordance with laws, some of which they may personally disagree with, non-custodial parents act in the best interests of their children when they enforce piercing- and tattoo-prohibitions, etc. imposed upon the children by custodial parents, even if they disagree with specific prohibitions. Graduate level education in child psychology is not required in order to appreciate the harmful dynamics that are created when children learn that permission can be obtained from non-custodial parents for actions that have been prohibited by custodial parents. There are limits to what courts can do to prevent harm that comes to children at the hands of their parents.

With regard to the issues raised in Fuentes, should the educators of the State of New York file an amicus brief? The foregoing question is both rhetorical and facetious; however, should it not be clear what kind of havoc would be created if school districts were to be informed that non-custodial parents must be involved in decisions involving the education of the children?

David Martindale, PhD, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected]

In an article entitled “Court of Appeals to Decide the 'Soul' of Sole Custody,” appearing in the December 2008 issue of The Matrimonial Strategist, Robert Dobrish offers commentary on the importance of an anticipated ruling from the NY Court of Appeals in Fuentes v. Board of Education of the City of New York. Dobrish expresses the hope that the Court of Appeals will “decide whether a noncustodial parent has the right to participate in educational decisions relating to a child where the divorce decree and custody order do no more than grant sole custody to the other parent.”

I share Dobrish's hope that the court will provide a clear decision, but I also hope that, in doing so, the court will appreciate the wisdom that has characterized earlier decisions in such cases as Braiman v. Braiman, 407 N.Y.S.2d 449 and Tropea v. Tropea, 642 N.Y.S.2d. 575. In both these decisions, the emotional needs of parents were subordinated to the emotional needs of children, as should occur in all such cases.

Another Point of View

It is unlikely that Dobrish would include in his article either information or commentary that he viewed as irrelevant. I infer, therefore, that when Dobrish observes that “a parent's perception that involvement (responsibility) in the process of decision-making somehow elevates that parent's image and gives that parent power,” he is suggesting that this is a pertinent consideration. I disagree. Parental concerns with such issues as “image” must be seen by our courts for what they are: distractions. In cases involving custody and access, our courts are obligated to focus on the best interests of the children whose parents have brought the disputes to court.

Key Relocation Rulings

In the 1996 decision by the Court of Appeals in the jointly examined relocation cases of Tropea v. Tropea and Browner v. Kenward, the court observed that “[l]ike Humpty Dumpty, a family once broken by divorce cannot be put back together in precisely the same way” (at 581). The joint parental decision-making that is characteristically found in a healthy marriage cannot be duplicated once that marriage has been dissolved. The court also observed: “Children are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests ' ” (at 582). I infer that the court has concluded that even where a proposed apportionment of parental rights and responsibilities is unfair to one of the parents, if it is an apportionment that best suits the needs of the children, it should be implemented. In some cases, the apportionment most likely to serve the interests of the affected children is one in which one parent holds all significant decision-making authority.

Joint Decision-Making

Patterns of constructive joint decision-making in the pre-divorce period are likely to be the best predictors of post-divorce constructive decision-making.

Even people with an abiding respect for the law cannot learn to cooperate with one another simply because they have been directed to do so by a court. It defies logic to anticipate that people who, during their marriage, were unable to cooperate for the sake of their child will somehow find the ability to do so out of respect for a judicial decision.

Chief Judge Brietel, in writing for a unanimous Court of Appeals in Braiman, observed that joint custodial arrangements “imposed upon already embattled and embittered parents ' can only enhance familial chaos” (at 451). The same observation could be made concerning a decision that might redefine “sole custody” in such a manner as to preserve decision-making rights for non-custodial parents.

This brings us to two of the entries on the very short list of issues concerning which almost all mental health professionals are in agreement. One of these was alluded to by Dobrish. Among mental health professionals, there is little dispute that, as Dobrish wrote, “it is generally in children's best interests to have both parents involved in their lives, except in the most extreme cases.”

Item Number 2 on the short list of issues concerning which mental health professionals are in general agreement is the damaging impact upon children of ongoing post-divorce disputatious behavior between their parents. The effect upon children is most dramatic when the issues in dispute are those that directly involve them. Dobrish has written: “Even the award of sole custody to one parent does not preclude an important role for the non-custodial parent in the child's life.” I concur.

Dobrish correctly points out that “the nomination as custodial parent brings with it various legal entitlements that are not only significant but also, in the hands of a vengeful, vindictive or irresponsible parent, capable of doing mischief.” Since I no longer perform custody evaluations, I can comfortably endorse the use by the court of skilled mental health professionals. Though no one can boast an error-free track record, skilled mental health professionals performing custody evaluations should be able to opine responsibly on which parent, if awarded sole custody, is more likely to facilitate actively the maintenance of a healthy relationship between the child(ren) and the non-custodial parent and manage constructively whatever spousal anger is still being experienced. Our laws do not prohibit former spouses from remaining angry at one another, but there is provision in the law for altering custody/access plans that are being utilized by custodial parents as vehicles for vengeful, vindictive, or irresponsible actions with negative implications for the children.

In commenting on the unwritten “'No Micromanagement Rule,'” Dobrish has written: “Judges are regularly asked to intercede in matters of parental disagreement that, on the surface, appear to be best resolved in some other manner. There have been reported decisions relating to whether a parent may smoke cigarettes, drink alcohol or maintain a pet in a child's presence.” Clearly, I have no knowledge of the assertions that were made by the parties who brought these matters before the court; however, each of these issues is one with clear implications for the best interests of the child. The effects of second-hand smoke have been documented. Alcohol, if consumed to excess, transforms a normally vigilant parent into an impaired supervisor of a child and transforms a normally competent driver into someone ill-equipped to transport a child to an emergency room. Certain childhood allergies are significantly exacerbated when the effected children are in prolonged contact with certain pets. The presentation of such issues to a court does not constitute a request that the judicial system micromanage the upbringing of children.

Not a Broken Concept

The current concept of sole custodians as sole decision-makers is not viewed by me as a broken concept in need of fixing. Questions raised by Dobrish, however, make it clear that it is a concept in need of clarification. Dobrish asks how (if at all) courts should address actions by non-custodial parents that include permission given to children for haircuts, piercings, tattoos, viewing of adult material, late bedtimes, and nude bathing on a beach. It is easy to criticize our courts and I plead guilty to being among those who have leveled various criticisms; however, as we contemplate the issues brought to our attention by Dobrish, fairness demands that we consider the Sisyphean task imposed upon courts handling custody/access disputes. We are asking that judges develop means by which society can prevent parents whose concern for their children's best interests is deficient from causing significant harm to their children.

Suggesting that the court might offer clarification was effortless. My suggestion is offered with recognition that no court, however prescient it might be, could foresee and address in advance all the petty issues concerning which one parent might bring another to court. However, the Court of Appeals might be able to assist the lower courts by offering examples of inconsequential decisions that non-custodial parents might make while children are in their care and contrast those with examples of decisions of consequence that should not be made by non-custodial parents, particularly when it should be clear that the decisions that the non-custodial parents wish to make are in contravention of decisions that custodial parents have already made or would be likely to make.

A rational and unselfish non-custodial parent recognizes that the long-term well-being of a child is best served when the parental authority of the custodial parent is supported, not undermined. Just as judges are obligated to act in accordance with laws, some of which they may personally disagree with, non-custodial parents act in the best interests of their children when they enforce piercing- and tattoo-prohibitions, etc. imposed upon the children by custodial parents, even if they disagree with specific prohibitions. Graduate level education in child psychology is not required in order to appreciate the harmful dynamics that are created when children learn that permission can be obtained from non-custodial parents for actions that have been prohibited by custodial parents. There are limits to what courts can do to prevent harm that comes to children at the hands of their parents.

With regard to the issues raised in Fuentes, should the educators of the State of New York file an amicus brief? The foregoing question is both rhetorical and facetious; however, should it not be clear what kind of havoc would be created if school districts were to be informed that non-custodial parents must be involved in decisions involving the education of the children?

David Martindale, PhD, a member of this newsletter's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology, served as the Reporter for the Association of Family and Conciliation Courts' Model Standards for Child Custody Evaluation and is the co-author, with Jon Gould, of The Art and Science of Child Custody Evaluations. His practice is limited to consulting with attorneys, psychologists, and psychology licensing boards in the areas of child custody and professional ethics and standards. He can be contacted by e-mail at [email protected]