Steering Away from the “Keeping the Children Together” Rule

In general, the law expresses a preference for keeping siblings together. However, the application of this universal rule has become more complicated as a result of today’s changing family dynamic and the presence of half-siblings. In a recent Third Department, Appellate Division case, Matter of Adam MM. v. Toni NN., the Court awarded primary custody to the father, separating a four-year-old child from his four half-siblings.

In this case, the mother and father separated approximately five months after the birth of their son. A custody proceeding ensued and the Family Court awarded sole legal and primary physical custody of the child to the father with limited visitation time to the mother. The mother appealed arguing the Family Court erred from separating the child from the Mother’s other children, with whom the child had formed a loving sibling bond.

The Appellate Division affirmed the Family Court order, holding that the parenting access schedule set by Family Court was in the best interests of the child. In custody determinations, “the primary focus is always ascertaining what is in the best interests of the child, and what will best promote the child’s welfare and happiness.”

Here, the Court found that the father was employed full time as an engineer, while the mother was unemployed and dependent on public assistance. Moreover, the mother had a suspended driver’s license as a result of two prior alcohol related driving convictions with a third arrest occurring during the pendency of the proceedings. Additionally, the mother had compromised the child’s safety in two instances, one by setting fire to father’s clothing while child present and second by intentionally driving away in her vehicle while father was in process of securing child in the backseat. Also, the mother was verbally and physically abusive to father in child’s presence.

The Court reasoned that “the facts adduced at the hearing and their bearing on the child’s stability, the home environment of both parents, each parent’s willingness to foster a relationship with the other parent, and their past performance and ability to provide for the child’s overall well-being, demonstrate a sound and substantial basis that supports the Family Court’s award of custody to the father.” Although, the Court was hesitant to separate the child from his siblings, the remainder of the facts favored awarding custody to the father.

If you have specific questions regarding parenting issues, visitation schedules, working toward a custody agreement with your former spouse, or if all communication has broken down and you are in need of a trusted and experienced Long Island Divorce Attorney, contact the offices of Jay D. Raxenberg. Call (516) 491-0565 or toll free at (888) 543-4867.