New York, NY asked in Child Custody and Family Law for Pennsylvania

Q: Scorned Mother lingers around making kid cry at custody pickup, what to do?

Every time I pick up my child, my son is crying and is reluctant to get in my vehicle. He loves being with me but mother is a “scorned woman” always trying to interfere and my son has already told me how “once he gets older he can choose who to be with” which is an idea implanted by mother. I don’t know what to do to get her to just say “Bye” in her car and then leave. She’s always lingering around dramatically and coming up to my vehicle with my son and takes forever to release him to me. Only thing I can think of is to change the pickup location to a police station, but even then, she would take forever to release him to me, and the parenting plan would need to be modified just for this issue. I have repeatedly told her to stay away and stop interfering with my custody time; and even at one point changed the pickup location to an indoor location, but nothing works. Any ideas?

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1 Lawyer Answer
Peter Christopher Lomtevas
Peter Christopher Lomtevas pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Divorce Lawyer
  • Schenectady, NY
  • Licensed in Pennsylvania

A: It is not clear as to whether this is a New York parent's question or a Pennsylvania parent's question. The laws of the two adjoining states is vastly different, and therefore outcomes are vastly different. Some elements are identical though.

In both states, as can be expected, no judge knows the parents and the details of their facts. In both states, judges work off of a cue card that dictates what to do based on allegations the judge thinks he hears. "Scorned" woman is very likely on the Pennsylvania judge's cue card, but not on the New York judge's cue card. The outcome depends on what is on the cue card.

Men who file contempt petitions in New York tend to go nowhere. In some cases, men find themselves in supervised visitation when the mother justifies her violations as necessary against the father. This means in New York, a mother can violate a custody order all she wants, and when the father files a violation petition, he finds himself the loser.

Pennsylvania in many instances holds a hearing on a mother's violations. That hearing can and does result in a "custody contempt" which includes jail. Stories from Pennsylvania reveal that judges make psychological assessments and order therapy using justice system facilities. In New York, a child can decide which home to live in at roughly fourteen years of age while in Pennsylvania, the child is bound to follow the parent's custody order at the peril of arrest.

In New York, modifying a parenting plan is very difficult. The standard is "a sufficient change of circumstances that warrant a court's review of the order to determine whether it is in the child's best interests." In Pennsylvania, the standard is only the "best interests of the child" standard. Pennsylvania's standard is a bit easier to surmount, but the vagaries of that standard all fall into a philosophy that government owns the child (parens patriae). Child custody appeals in New York are based on the sound and substantial basis in the record standard while in Pennsylvania, the Superior Court's output will be based on whatever is consistent with its policies, usually rubber stamping ("affirming") what the trial judge decided.

However, in New York, the assigned attorney for the child is bound to repeat the wishes of the child and is in all respects an attorney for the child. Second guessing the child's wishes or substituting judgment happens in cases where the child is too immature or inarticulate. In Pennsylvania, the guardian ad litem operates as a lawyer for the government, and provides the judge all the justification the judge needs to go in whatever direction the judge wants to go. New York orders are clear and unequivocal to meet the burden of proving contempt while Pennsylvania's orders are vague and incomplete. The parent in Pennsylvania must apply "common sense" in complying with such incomplete orders or else end up contempted for not thinking correctly.

As for the asker's question, we are not psychologists. We cannot guide an anonymous parent online and provide visitation advice. We can however say that in either jurisdiction, for a young child whose age is not revealed in this question, the mountain will be steepest as the child is very young, and that slope will level out as the child ages. In New York, a father can get custody once the child hits his teens while in Pennsylvania, the outcomes are mixed. Generally, in both states, a father never gets custody but a mother always loses it. Patience is a virtue in the early years as the child's exchanges grate on the asker's nerves.

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