A recent ruling by an appellate court in New York, in a case in which I represented the mother, provides some helpful insight into the relationship between what is best for a child, and what can be reasonably expected of a parent with custody. The client has allowed me to discuss the case in Legal Briefs.
The appellate court overturned a child visitation order that directed the mother of a two year old boy to take the child to a distant state one week a month for visitation with his father. We argued that the order was both hurtful to the child (an expert testified that such an extended period of separation of a young child from the primary caregiver can cause long term harm), and that it imposed an unreasonable burden on the mother who was directed to bring the child to the distant state on one week’s notice from the father.
In its decision, the appellate court did not explicitly address the latter issue, the burden on the mother. Instead, the judges wrote:
"Additionally, the existing monthly visitation schedule providing for the child to spend one week per month in [the distant state] and the remainder of each month in New York creates a situation in which the child has two homes and no real sense of permanency in either, since the father is permitted to schedule his visitation week upon one week's notice to the mother."
This was in keeping with the principle that issues of visitation are to be made on the basis of the best interests of the child. However, in my opinion the Court was, as well, attempting to redress the unfairness to the mother. In arguing a case such as this, don’t leave out the impact on the parent of a court’s visitation order. If you make this case effectively, the court may find a way to respond even if it does so indirectly.