Chapter 11 CUSTODY, PARENTING TIME, RELIGIOUS UPBRINGING, ARTIFICIAL INSEMINATION, NAME CHANGES
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Chapter Eleven
Custody, Parenting Time, Religious Upbringing, Artificial Insemination, Name Changes
I. Child Custody and Parenting Time Provisions
It is beyond dispute that public policy concerns abound in matrimonial cases.2529 Statutory and decisional authority has established that contracts entered into by parents regarding the fate of their children are not binding on the courts.2530 N.Y. Domestic Relations Law §§ 70 and 240 (DRL) and decisional authority impose the responsibility upon the courts to make custody and visitation orders based upon the best interests of the child.2531 Nor are child custody decrees entitled to the res judicata effect accorded civil orders and judgments generally but, rather, are subject to modification.2532 Custody and visitation determinations in a matrimonial judgment need not reflect the parties' separation agreement provisions. Courts cannot be deemed bound by the custody-visitation terms of a separation agreement because the best interests of the child must be the paramount concern in every custody-visitation determination, pursuant to DRL §§ 236B(7) and 240.2533
Section 191 of the Restatement (Second) of Contracts states: "A promise affecting the right of custody of a minor child is unenforceable on grounds of public policy unless the disposition as to custody is consistent with the best interest of the child." The Comment to the section explains:
a. Rationale. The custody of minor children is, like marriage, an important subject of public concern. A promise by one entitled to the custody of a minor child to transfer the custody to another or not to reclaim custody already transferred to another is unenforceable unless it is consistent with the child's best interest.
By way of example: although child custody was once a proper subject for arbitration,2534 the Second Department, in Glauber v. Glauber,2535 held that public policy prohibits the resolution of this issue in such a forum,2536 and as such, agreements to arbitrate custody are unenforceable under New York law.2537 Notwithstanding that custody agreements between parents are to be given priority,2538 the responsibility of the courts always supersedes whatever arrangement has been struck between the parents. The court must always make its own independent review and findings, and it may award custody to one parent in the face of an agreement granting custody to the other if the best interests of the child require it.2539 Agreements cannot be upheld where children are treated as chattels and have their rights bartered away.2540
On the other hand, if children have been in a successful custodial situation under the terms of an agreement, courts will long reflect over any possible changes in light of the settled principle that seeks to avoid disruptions in custody situations. When the court recognizes an agreement, it does so not because the parties' compact binds the court, but because it sheds light on the motives and disposition of the parties as part of the overall picture of the child's best interests and welfare.2541
II. Standing in Custody and Visitation May Not Be Stipulated Away
As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances. Only when the nonparent establishes the existence of extraordinary circumstances will the court examine the best interests of the child.2542
A voluntary agreement, alone or as incorporated into a court order, will not of itself confer standing upon a person not related by blood to assert a legal claim to visitation or custody.2543 It is against public policy to stipulate away a child's right to be reared by his or her biological parent and that any stipulation elevating a nonbiological parent to the status of parent in a custody or visitation matter is against that public policy and does not confer standing upon a person unrelated by blood to the child.2544 Therefore, as a matter of public policy a stipulation in which a parent agrees that a nonparent need not show extraordinary circumstances in a future custody dispute may not be enforced.2545 An existing consent order, standing alone, does not constitute a judicial finding of surrender, abandonment, unfitness, neglect or other extraordinary circumstances.2546
In Canabush v. Wancewicz,2547 the mother entered into a stipulation with the child's nonbiological father that family court would apply the best interests test to any subsequent litigation regarding custody and visitation, to be held to the same standards and burden of proof as a natural parent in any proceeding pursuant to article 6 of the FCA. The Appellate Division held that, while parties to a civil dispute are free to fashion the basis upon which the controversy will be resolved, and in so doing they can stipulate away statutory and even constitutional rights, unless public policy is affronted, settled law required that, absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances, a biological parent has a right to the care and custody of his or her child superior to that of all others. The mother was not free to elevate the petitioner's status to that of a biological parent. She had not merely stipulated away some personal right, because the child is not her property.2548 She was not free to stipulate away the predicate "extraordinary circumstances" test before the nonparent has standing under the best interests of the child tests.
III. Addressing Specific Custody and Access Issues, Radius Clauses
Some of the more problematic areas with respect to custody and parenting time that should be addressed in an agreement, in addition to basic living arrangements, include the following:
1. Right of a parent who has full or primary physical custody to "relocate" from the county or state, and payment of associated transportation expenses to facilitate meaningful contact with the non-custodial parent; and
2. Rights of grandparents, stepparents, or other known third parties to visit with the child, particularly in the event of a parent's death. 2549
The stipulation, in Carreiro v. Colbert,2550 allowed the defendant-mother to relocate, with the children, within 200 miles of her residence, in Nyack. The stipulation imposed certain consequences if she relocated beyond approximately 200 miles from that residence. Defendant relocated to Ithaca. Plaintiff alleged that Ithaca was more than 200 driving miles from Nyack. Defendant argued, without opposition, that the straight-line, or radial, distance between the street addresses of the two residences was 162.64 miles.
The court turned to Potier v. Potier,2551 wherein the agreement, similarly, without specifying method of measurement, permitted the plaintiff-wife to relocate within 60 miles of the Empire State Building. Held: the new residence, located 77 road miles from the Empire State Building, did not violate the agreement because it was located less than 60 radial miles therefrom.
Parties may also choose to address the right to make health care, education, religious upbringing, and similar decisions if the parties purport to have "joint custody." Each may have "zones of influence," whereby each parent has final decision-making authority, even if not the custodial parent.
IV. Radius Clause, Joint Custody Agreement Implies Radius Clause to Prevent Relocation
No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child's best interest.2552 Although parties may agree as to relocation within a certain geographic radius, such an agreement is not dispositive but, rather, is a factor to be considered along with all of the other factors that the court should consider when determining whether the relocation is in the best interests of the children.2553 In 2014, the parties, in Jaimes v. Gyerko,2554 executed a so-ordered custody stipulation that was incorporated, but did not merge into the judgment of divorce. The parties agreed to joint custody of their two children, with the mother being the primary residential custodian. The stipulation permitted the mother to relocate within 55 miles of her then residence without the express written permission of the father or a court order. In 2017, the mother told the father that she and the children would be relocating from Mamaroneck, N.Y., to Woodbridge, Connecticut. The father filed a petition to modify the so-ordered stipulation based on a change in circumstances, to enjoin the mother from relocating with the children because it would not be in the children's best interests. Based on the agreement, the Family Court dismissed the petition. The Appellate Division reversed the summary dismissal and ordered a hearing because no agreement can dispositively bind a court, rather an agreement is but a factor for consideration especially where the opposing parent makes some evidentiary showing in support of his opposition.
In Thomas H. v. Christine R.,2555 the Supreme Court held that inherent in a joint custody agreement is an implicit radius clause because it is more than just a visitation right; it contemplates involvement in the child's life:2556
Joint custody entails more than just visiting with the child[;] it is assumed a joint custodian will be involved in all aspects of the child's life, a task that would be extremely difficult if the child resides hours away. Therefore, the Court finds that within the joint custody agreement, there is an implied radius clause that restricts the residential parent's ability to relocate without permission of the noncustodial parent or the Court.
V. Agreements Regarding Upbringing Are Enforceable
Religion may be considered as one of the factors in determining the best interest of a child...
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