July 14, 2006
When is Split Custody in a Child's Best Interest?
The preference for keeping children together requires in most courts that there at least be an evidentiary hearing and express findings that the arrangement is in the best interests of the children. Sanders v. Sanders, 2005 La. App. LEXIS 2081 (September 23, 2005) (See Blog posting)
Thus, in a case in which the trial court granted Father custody of his 3-year-old son, leaving custody of the 5-year-old with Mother, the trial court accepted Father’s assertion that the 3-year-old was “mimicking” the 5-year-old’s autistic behaviors and that this was not good for the 3 year old. The California Court of Appeals reversed, holding that mere allegations of best interests are insufficient to justify splitting custody. "Just as in cases where the bond between parent and child cannot be severed merely because the parent has a disability, so too the bond between siblings should not be severed without a careful analysis of the actual impact of separation on both children." In Re Marriage of Heath, 122 CA 4th 444 (2005)(opinion on web)
An older child’s strong preference can constitute exceptional circumstances, especially if there is not a close sibling bond to begin with. The Supreme Court of North Dakota, for example, upheld a relocation by mother than resulted in split custody because her oldest son had already moved in with dad permanently and did not have a close relationship with his much younger siblings, whom she sought to relocate. Schmidt v. Bakke, 2005 ND 9, 291 N.W.2d 235 (January 19, 2005)(opinion on web)
The Michigan court provides a cautionary tale on parental agreement to split custody however. In Ellis v. Evers, 2006 Mich. App. LEXIS 791 (March 21, 2006)(opinion), Mother was originally granted custody of the two children. Father moved to change custody and Mother agreed that the younger son could move to Father, but successfully disputed the appropriateness of the change in custody of daughter. Later, Father again moved to modify custody, this time based on the changed circumstances of the children having been separated. The court of appeals concluded that this was a sufficient basis for a motion to modify. “The separation of siblings is generally a more significant event "than the normal life changes (both good and bad) that occur during the life of a child." The separation of the siblings could have a very significant effect on their future relationship and accordingly their future well-being.” (The case nonetheless was remanded due to other court errors)
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