Modification of a Custody Order: Part 5- Willingness to Foster a Relationship with the Other Parent

Particularly relevant to a best interests analysis when modifying a custody order is each parent’s past performance and their willingness to foster a healthy relationship between the child and the other parent.

For example, in one recent case, the court awarded custody to the parent whom it found to be a “consistently positive parent” who was capable of providing the child with the structure and support necessary to facilitate his development and encourage a sustained and positive relationship with the non-custodial parent.

On the other end of the spectrum, a court should consider a parent’s hostility towards the other parent and how this can affect or has affected child.  This is because a parent’s interference with the parent-child relationship, such as through the wrongful denial of visitation, is so inconsistent with the best interests of the child as to, “per se, raise a strong probability” that the offending is unfit to act as custodial parent.”

For example, in a 2010 case, the court found that the mother did not encourage a relationship between the children and the father and that her behavior was so inconsistent with the children’s best interests as to raise a strong probability that she was unfit to be the custodial parent.  While in a 2016 case, the mother failed to allow the father his court ordered visitation.  This was found to be contrary to the child’s best interests.  In both of these cases, the mothers lost custody.

Sometimes the offending parent’s conduct is subtler, but the gravamen of their conduct is the same.  For example, in a 2014 case, the court found that the mother interfered with the father’s relationship with their sons by, among other things, refusing to be flexible when their scheduled activities and interfering with visitation arrangements.  Also, the evidence demonstrated that the mother’s hostility toward the father had eventually alienated the sons from him as well as interfered with their relationship with him.  Further, the mother acknowledged that she did not permit the sons to visit their maternal grandparents, despite the sons’ desire to do so, because her relationship with the grandparents had broken down.  All of this weighed in favor of an award of residential custody to the father.

The bottom line is that a parent who devalues and disregards the importance of the other parent in the life of their child is doing themselves and their child a disservice.  As difficult as it may be, parents must try to be consistently positive, or at least neutral, with their child with regard to the other parent.

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Posted in Divorce