Welcome to the Tipping Point: ‘House Rules’ in Contested Custody Litigation

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After reading Judge Richard Dollinger’s July 2021 decision in E.E.C. v. S.S., 2021 NY Slip OP 21258 (Sup. Ct., Monroe Cty), this author was reminded of the Victoria Kann children’s book titled “Pinkalicious.” The seminal quote from Kann’s book—delivered by a Mom to her daughter in the book—is as follows: “You get what you get, and you don’t get upset.”

My daughter once brought that book home from the library at school many years ago, and I remember we used to laugh together when I would deliver the punchline as I read it to her: “You get what you get, and you don’t get upset.” It doesn’t take long to appreciate why Kann’s quote comes to mind after reading the E.E.C. decision.

In E.E.C., the litigants entered into an agreement resolving custody of their two children. The issue presented—one that many matrimonial practitioners are familiar with—was how a court is to address what happens when one litigant says that a child does not want to participate in the access schedule that the litigants (the parents) once agreed was in the child’s best interests. More specifically, how is a court to assess whether or not the residential parent is, in fact, urging the child to visit the other parent. As Judge Dollinger put it, “how can a court determine whether a parent was really ‘urging’ the child to attend visitation or just mouthing their ‘urging’ while smiling, winking or smirking to the reluctant child.”

If no discipline or consequence of any kind is imposed on the “reluctant child,” then the decision states “the child reaches a common child-like conclusion: Why do what their parents said was in their best interests when there is no penalty for failing to do so.” The decision describes a “bitter” custody fight lasting more than a year which ultimately resulted in an agreement. But, as the decision states, “almost immediately, new allegations surfaced in an order to show cause and new affidavits, littered with an almost blow-by-blow but still highly disputed account of the parent’s interaction with the children and with each other emerged.” In short, the “children refused to follow the agreed visitation schedule.”

The court in E.E.C. proceeded to impose “house rules” on the parents as part and parcel of relief “which as to the court may seem just and proper.” The decision acknowledges that New York “has not considered whether courts can impose a form of ‘house rules’ on parents and children in contested visitation matters.”

The decision begins its defense of “house rules” by saying that a parent who “permits a child to refuse agreed visitation without consequence is not fostering a relationship between the child and the other parent.” In Judge Dollinger’s words, the imposition of discipline in the form of “house rules” “removes the parent as the party responsible for the discipline and instead, inserts the court.”

The decision acknowledges that “house rules” are not “universal” and that “a child with mental health restrictions or under the care of a therapist or psychiatrist should not be subject to all the rules.” The decision also states that parents “could easily devise another set of rules…made in consultation with the child’s professional.” Whether or not that exercise could be “easily” accomplished is perhaps far from certain.

Without further ado, the house rules, include, but are not limited to, the following. Fasten your seatbelts:

  1. No permission for extracurricular activities shall be granted by either parent and any permission for current extracurricular activities shall be immediately revoked.
  2. The child may not participate or attend any camp, summer program or other activities.
  3. Any electronic devices, including but not limited to, computers, cell phones, tablets, watches, play stations or similar electronic devices or other internet communication devices shall be confiscated and removed from the child’s use.
  4. No friends or peers of the child may enter the child’s primary residence and the child may not visit any other peer or friend away from the child’s residence.
  5. When the child returns to school, the child must return home immediately after the end of school and may not participate in any school-related activities or extracurriculars.

Again, the above list is not exhaustive (the decision lists other rules as well). Several things come to mind. First, the next time a client asks his or her matrimonial lawyer what it means to say that trial courts in New York have “discretion” in domestic relations matters, perhaps the best answer would be to have the client read the E.E.C. decision—particularly if custody is in dispute. Second, how the court is to ensure that the “house rules” are followed remains unclear.

But this author submits that the “house rules” are symbolic of something beyond how to address the “reluctant child.” Indeed, my reading of the decision brings the following to mind: enough is enough. That is not a commentary on E.E.C.—indeed the issues presented there may well have necessitated judicial intervention and the decision itself does not provide the context one could likely glean from reading the motion papers as to the severity of the situation. More generally, however, our judicial resources are strained. It has been said that virtual practice has made it that much harder to settle cases (e.g., because litigants do not appreciate the sting of being in a physical courtroom, face to face with a judge, for potentially hours on end). Assuming that is true (and this author believes it is), we as matrimonial practitioners need to make a concerted effort to find creative ways to resolve more cases.

The number of disputes that come up in a contested matrimonial litigation can grow by the day. Some disputes are appropriate for and need judicial consideration, while others are not. Matrimonial practitioners should be prioritizing problem-solving between and among each other now more than ever. If we can’t do that, then we should expect more “house rules” and/or other “rules” to follow—and in the end, we will be left lamenting to ourselves that catchy, albeit not so funny phrase in this context: “You get what you get, and you don’t get upset.” The choice is ours in terms of what direction we want to take.

“Welcome to the Tipping Point: ‘House Rules’ in Contested Custody Litigation,” by Alan Feigenbaum, was published in the New York Law Journal on December 28, 2021. Reprinted with permission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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