False Accusations Against a Spouse Can Lead to Losing Custody of Your Child

Often in divorce cases, the parties lose focus of the big picture and turn to a “win at all costs” strategy.  As any attorney will tell you, this seldom, if ever, works out the way you think it will.  This type of scorched earth policy tends to come out when fighting over custody of the children.  A prime example of how this tactic can back fire is found in the case of Carnike v Kasson.

In the Kasson matter, the parties had  one child.  The parties divorced and the Court awarded joint physical custody as it was clear both parents were loving responsible people.  The order directed the child moving from mother to father on a weekly basis. Right before the child, a little girl, was to start kindergarten, the wife made accusations that the father was sexually molesting the child, abusing alcohol and as a result of his job, rarely if ever home to take care of his daughter.   As a result, she petitioned the family court to have physical custody granted to her with the father only having supervised visitation.  Based on these accusations, father crossed moved for sole custody claiming that these accusations were only made to pull custody away from him and destroy any relationship he had with his daughter.

To warrant a modification of a pre-existing custodial arrangement, there must be sufficient evidence to support a change of circumstance reflecting a real need for a change in the order to continue the best interests of the child.  Courts have held that starting school is enough to warrant a change in circumstance requiring the establishment of a residence for the child.   Additionally, Courts have held that the lack any ability of the parties to communicate with each other concerning the needs of the child does not advance the best interests of the child and that it in itself is enough to establish a change in circumstances which may be enough for the Court to change the custodial arrangement.  Had the wife in this case stopped at that, simply saying that her daughter was beginning school and having her change her residence every Saturday evening was not in the best interest of the child, this case might have been decided differently.

At the hearing, the evidence showed that despite being seen by six different doctors there was no evidence of sexual abuse.  Additionally the court took note that there were no outstanding child protective service investigations nor any reports made by the mother to the police department.  The Court found that the mother in this instance was purposely attempting to interfere with the father’s parental rights.  Finally, despite the mother’s attempts to curtail visitation and custody, the father testified that he was willing to continue to promote the relationship between the mother and daughter.  As a result, the Court granted the father full physical custody of his daughter. Unexplainably, the Court declined to grant sanctions against the ex-wife for her accusations and actions.  This is the only part of the case that is surprising.  One can only assume that after losing physical custody of her daughter the Court deemed sanctions as unduly “piling on.”

False accusations and parental alienation is the fastest way for you to lose physical custody of your child.  Remember, divorce is hard enough for children to adapt to, the last thing they need is for you to ruin the relationship with your former spouse for no other reason that you are employing scorched earth tactic.  The best interests of your child is always to have a loving relationship with both parents.  It is imperative that you always foster such relationships and not interfere.  While you may no longer wish to speak to your ex-spouse, for the sake of the children, until they are emancipated, you must have at least a cordial relationship where you can discuss your child’s up bring.  It is to your peril if you are unable to keep such a relationship going. If you’re facing such problems, call a an experienced Long Island divorce attorney at Divins & Divins, P.C. for your free consultation.

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Grandparents Rights to Visitation | Long Island Divorce Lawyer

If you are a grandparent, what rights do you have to visit your grandchildren?  Can you get a Court to grant you visitation with your grandchildren if the parents forbid it?  The Court of Appeals for New York addressed this issue in its decision of In the Matter of E.S. v. P.D., in 2007.

In that case, husband and wife were married and had one child. Unfortunately, the wife was diagnosed with cancer.  When the diagnosis was made, wife’s mother moved in to help her daughter with daily errands and other things like cooking, cleaning and caring for the couple’s son. The wife passed away and the decision was made that the grandmother would stay in the house to help raise the child while husband worked.  For the next five years, the grandmother helped raise the child.  At some point, arguments between the father and grandmother began regarding the best way to raise the child.  As a result, the father asked the grandmother to leave and severely curtailed the visitation between the child and his grandmother.  As visitation became less and less frequent, grandmother petitioned the Court for visitation.  The father’s position was that the grandmother was not raising his son the way he deemed fit and was usurping his role as the father.

Domestic Relations Law §72(1) states that where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to the supreme or family court, and the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given  in such manner as the Court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent in respect to that child.

When a Court is faced with a petition from a grandparent requesting visitation, it first must find that the grandparent has standing to come into court in the first place.  There is no automatic right for a grandparent to see their grandchild.  The Domestic Relations Law only provides a vehicle for a grandparent to seek visitation.  In order for a grandparent to have standing the Court must find one of two things exist.  First, if one of the two parents has passed away, then the grandparents have standing.  The other test is a more of a catch all which states that the grandparents have shown equitable circumstances which dictate that they should at least be heard as to why they should have access to their grandchild.

In this case, since a parent passed away, the grandmother had standing and was able to petition the Court for visitation.  Based on the facts in this case, specifically a five year relationship with the child where the grandmother was assisting in raising the child, the Court held that it was in the child’s best interests to continue this close relationship with the child.  Despite this ruling, the Court was mindful of the father’s wishes and right to raise his son in a manner which he deemed proper. However, in this case, the Court found that the fights and other allegations in which the father leveled against the grandmother were unsubstantiated.

In the circumstance where both parents are alive, the grandparents have a harder time establishing standing.  In order to have standing when both parents are alive, the grandparent would have to show that equity dictates that they be heard in Court.  What should a grandparent be able to show? Their best bet is to establish a long and close bond with the grandchild.  The fact that there is an acrimonious relationship between the parents and the grandparents are not enough to establish or deny visitation.  The key will be the relationship between the grandparent and the child before visitation is curtailed or denied.  Even if you are able to establish standing, grandparents normally have a high hurdle to overcome in forcing visitation.  The parental right to make decisions for their children and raise them in a manner they deem fit is paramount to raising children and will not be lightly disregarded.

Grandparent visitation is a complicated matter which should not be entered into lightly.  Your case will depend on the facts and circumstances of your particular case.  Assuming you have standing, preparing for the hearing is crucial.  If you cannot amicably settle this matter and must seek judicial intervention regarding grandparent visitation, seek our advice from one of our Divorce attorneys at the Long Island Divorce Law Firm of Divins & Divins, P.C., immediately so that we can begin preparing your case for the best possible outcome.

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