Once again, the Appellate Division in New York gave another win to  a father seeking joint custody. (Matter of Brady J.S. v. Daria A.B. 439 CAF 21-00093 August 4rth).  A decision was rendered that found that a father had established a change in circumstances, granting him joint legal custody with the mother and the grandparents The court awarded the father shared physical custody with the grandparents, as well as joint legal custody.  This is an important finding for several reasons. 

  Please note, many people confuse joint legal custody with physical custody.  You can have joint legal custody with regard to decision making and access to records regarding the child but not have shared physical custody.  Shared physical custody is where there is a 50/50 split of time versus having joint legal custody but possibly a parenting plan allowing some access but not 50 percent of the time.  

In this case, the father achieved both. He had rehabilitated himself.  He had shown a consistent desire to maintain his relationship with his child, as well as becoming employed, sober, and purchasing a home.  The attorney for the child appealed the decision, saying that the child did not want to have shared custody with the father and the Appellate Division affirmed the lower court’s decision. 

 Not only is this a case showing the importance and the trend towards joint custody, but this is also a case for a child’s wishes or her position in a particular case is not the only factor that the court can consider.  Sometimes the position of an attorney for the child can be a detriment to trying to resolve a case or settle a case between the parties, as well as with the court. 

 This is also a case for change in circumstances.  The father had changed and, as a result of that change, the court looked favorably on his motivations and behavior granting his application for change in circumstances since the last court order. The court found he succeeded in meeting the threshold of change in circumstances, allowing the court to then look to the best interest of the child and change the custody order, which was previously just for the maternal grandparents and mother previously..  If you are in a better place then you were when a custody order went into effect, or things have changed significantly, you may be able to meet the burden of proving a change in circumstance and have the court determine what is your child’s best interest. In light of the recent court decisions, do not give up on joint custody, more access to your child, and a building a better relationship with your child or children.