Family Law Case: Paternity of A.S.; B.S. v. E.M.

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: Trial court’s decision to modify joint legal and physical custody of Daughter, to sole legal and primary physical custody with Mother, was not an abuse of discretion in light of ample evidence that the parties failed to co-parent effectively and that Mother was the “less uncooperative” of the two parents.

FACTS AND PROCEDURAL HISTORY: Mother and Father have one child together, Daughter, who was born in 2007. In 2008, paternity was formally established, and the parties entered into an agreement, approved by the trial court, that provided for joint legal custody, and an alternating weekly equal-time parenting schedule.

Subsequently, the parties’ co-parenting relationship became increasingly hostile and acrimonious. The uncommonly bitter and childish interactions between Mother and Father are detailed in the opinion. Matters came to a head when Mother began to threaten to withhold parenting time, which resulted in Father filing a motion for custody and parenting time, to which Mother responded with a petition to modify custody.

After a hearing, the trial court modified the joint custody arrangement to sole legal custody and primary physical with Mother, subject to alternating weekend parenting time with Father. Father appealed.

On appeal, Father assigned error to the modification of custody. Father did not dispute that a substantial change in circumstances had occurred; thus, the disputed issue on appeal was whether the modification by the trial court was in Daughter’s best interests. Father’s appeal endeavored to critique Mother’s parenting behaviors to portray Mother as the less capable parental figure, and thus custody should have been awarded to him. Nevertheless, the Court of Appealed determined that there was ample evidence that the parties could no longer co-parent effectively, and that Father was less willing to be cooperative than was Mother. Thus, the modification of custody was not an abuse of discretion.

Judge Robb filed a lengthy dissent on the custody modification issue. First, she believed that the parents’ reluctance to cooperate and/or communicate was not a sufficient basis to modify custody. Second, she stated that permitting the modification of custody gave the case an “out” rather than requiring the parents to work with each other. Judge Robb also expressed a belief that trial courts should modify custodial relationships only where a substantial change in circumstances had placed the welfare of the child at risk. She would have reversed the trial court’s modification, reinstated joint custody, ordered joint counseling, and taken steps to encourage the parties to work out their differences.

To view the text of this opinion in its entirety, click here: Paternity of A.S.; B.S. v. E.M.

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