WE ARE THE PERFECT PARENTS FOR JOINT LEGAL CUSTODY – – ONLY WE ARE NOT, CAUSE WE GET ALONG HORRIBLY ; DOMESTIC VIOLENCE AND MENTAL HEALTH AS CUSTODY FACTORS 4th DEP’T. CASE

Awarding the parties joint legal custody of the children is not supported by a sound and substantial basis in the record. Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled. In determining whether joint legal custody is appropriate, the question of fault is beside the point. Here, the obvious hostility between the mother and the father makes joint custody inappropriate.

The parties do not agree on where the children should attend school, the specifics of their medical care, whether the children need routine in their lives, whether the elder child should be given her allergy medication or enrolled in counseling, and whether the younger child needed speech therapy or to adhere to a strict diet. According to the report prepared by a licensed psychologist after court-ordered psychological evaluations of the mother and the father, neither parent appeared able to sufficiently distance themselves from their mutual enmity and embitterment in order to fully act in ways which were reflective of the children’s needs.

With respect to co-parenting, the licensed psychologist concluded that neither parent had demonstrated the capability to adequately fulfill this expectation. Here, the record establishes that, although the mother and the father could sometimes effectively communicate with each other, most of their interactions were acrimonious. Thus, the determination to award the parties joint legal custody lacks a sound and substantial basis in the record. We conclude that it is in the best interests of the children to award sole legal custody to the mother.

In making a custody determination, the court must consider all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of the parties to provide for the child’s emotional and intellectual development and the wishes of the child. No one factor is determinative because the court must review the totality of the circumstances.

Further, because the court determined that the mother had proven by a preponderance of the evidence that the father had committed an act of domestic violence against her, it was required to consider the effect of such domestic violence upon the best interests of the children, together with such other facts and circumstances as the court deemed relevant in making a direction pursuant to Domestic Relations Law § 240 and state on the record how such findings, facts and circumstances factored into the direction.

Here, we conclude that the court failed to give adequate weight to the father’s extensive history of domestic violence or his continued minimization of his actions and denial of the nature and extent of his mental illness. The evidence established that the father engaged in multiple acts of domestic violence against the mother in the presence of the children. Despite having been convicted of and serving a jail sentence for one of those acts, the father continued to deny that he had ever engaged in domestic violence.

Further, although the father has been diagnosed, by more than one provider, with a bipolar disorder, he testified at trial that he could not recall ever having been given such a diagnosis. Both the mother and the father testified that the father had discontinued the use of his prescribed medications without discussing it with his treatment providers. The father had also threatened to commit suicide on more than one occasion, prompting calls to the police that resulted in brief hospitalizations for which the father blamed the mother. At the time of the trial, the evidence established that the father’s current medication regimen was inappropriate for Bipolar Disorder treatment and that the father was not currently engaged in any regular mental health counseling.

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