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“I don’t want a lawyer to tell me what I cannot do, I hire him to tell me how to do what I want to do.” - J.P. Morgan

Stereotypes Only Go So Far

We all should eschew cultural stereotypes, especially if we might be inclined to make important life decisions based thereon. That is what a father and a New York Family Court referee recently learned in Manhattan. The father, who lived in Manhattan, had responded to an online advertisement by woman from Queens who was seeking to conceive a child. The couple conceived and became parents to twins in June 2007, with the mother being the primary custodian of the children and the father having regular visitation.

By October 2007 differences between the parents prompted the father to petition the Family Court in New York County to become the primary custody of the children. In support of his petition, the father presented lay testimony that the children, by reason of their "nontraditional" family arrangement, would more easily "fit in" with other children in the father's West Village neighborhood than in the mother's predominantly Greek-American neighborhood in Queens! For this and other reasons, the Family Court referee agreed with the father and ordered that when the twins attained 4 years of age and were enrolled in school they would change their primary residence from the mother's home to the father's home with the father thereafter being the primary custodian of the children.

The mother appealed the referee's order and the appellate court agreed with her, reversing the referee's order. The appellate court stressed that, where both parties are fit parents, the parent seeking a change in custody must present evidence of "extraordinary circumstances" to show that the advantages of disrupting the children's lives by a change custody clearly outweigh the benefits of continuing in the stable environment of their current custodial arrangement.

In this instance, both the father and the Family Court referee learned that speculation about the perceived "social advantages" of one neighborhood over another was a legally insufficient reason to warrant a change in child custody.

[Source material: Lawrence C. v. Anthea P., 2010 NY Slip Op 09353 (1st Dep't Dec. 16, 2010), and as reported in the New York Law Journal, page 1, December 20, 2010.]

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