Welcome to the Tipping Point: “House Rules” in Contested Custody Disputes | Vide Rome LLP

After reading Judge Richard Dollinger’s July 2021 decision in EEC versus SS, 2021 NY Slip OP 21258 (Sup. Ct., Monroe Cty), this author remembered Victoria Kann’s children’s book, “Pinkalicious.” The seminal quote from Kann’s book – delivered by a mother to her daughter in the book – is: “You get what you get, and you don’t get mad.”

My daughter once brought home this book from the school library many years ago and I remember we used to laugh together when I delivered the fall to her while I read to him: “You have what you have, and you have not upset.” It doesn’t take long to realize why Kann’s quote comes to mind after reading the EEC decision.

In EEC, the parties reached an agreement resolving the custody of their two children. The question presented—one that many matrimonial law practitioners are familiar with—was how a court should deal with what happens when a litigant says a child does not want to participate in the access schedule that litigants ( the parents) once agreed that it was in the best interests of the child. Specifically, how can a court assess whether or not the residential parent is in fact inducing the child to visit the other parent. As Justice Dollinger put it, “How can a court determine whether a parent truly ‘urged’ the child to attend visitation or merely expressed ‘incitement’ while smiling, winking eye or a smirk at the reluctant child.”

If no discipline or consequences of any kind are imposed on the “reluctant child”, the decision states that “the child comes to a common conclusion similar to that of a child: why do what his parents said be in his best interest when there is no penalty for failing? do that.” The ruling describes a “bitter” custody battle lasting more than a year that ultimately resulted in an agreement. But, as the ruling states, “almost immediately, new allegations surfaced in a show cause order and new affidavits, littered with an almost blow-by-blow but still highly contested account of the parents’ interaction with the children and each other have emerged.” In short, the “children refused to follow the agreed visitation schedule”.

The court in EEC proceeded to impose “house rules” on the parents as part of a remedy “which, as to the court, may appear just and proper”. The ruling acknowledges that New York “has not considered whether courts can impose some form of ‘house rules’ on parents and children in contested visitation cases.”

The ruling begins its defense of “house rules” by saying that a parent who “allows a child to refuse agreed-upon visits without consequence does not further a relationship between the child and the other parent.” In the words of Judge Dollinger, the imposition of discipline in the form of “house rules” “removes the parent as the party responsible for discipline and inserts the court instead”.

The decision acknowledges that “house rules” are not “universal” and that “a child with mental health restrictions or in the care of a therapist or psychiatrist should not be subjected to all the rules. The ruling also states that parents “could easily devise another set of rules…made in consultation with the child’s professional.” Whether or not this exercise can be accomplished “easily” is perhaps far from certain.

Without further ado, the house rules include, but are not limited to, the following. Fasten your seat belts:

1. No permission for extracurricular activities will be granted by either parent and any permission for ongoing extracurricular activities will be revoked immediately.
2. The child may not participate in or attend any camp, summer program or other activity.
3. All electronic devices, including but not limited to computers, cell phones, tablets, watches, game stations or similar electronic devices or other internet communication devices must be confiscated and removed from the use of the child.
4. No friend or peer of the child may enter the primary residence of the child and the child may not visit any other peer or friend outside the residence of the child.
5. When the child returns to school, the child must return home immediately after school ends and may not participate in any curricular or extracurricular activities.

Again, the above list is not exhaustive (the decision also lists other rules). Several things come to mind. First, the next time a client asks their matrimonial attorney what it means to say that the New York trial courts have “discretion” when it comes to domestic relations, perhaps the best answer would be to ask the customer to read the EEC decision, particularly if custody is contested. Second, it remains unclear how the court should ensure that “house rules” are followed.

But this author argues that “house rules” are symbolic of something beyond how to address the “reluctant child.” Indeed, my reading of the decision reminds me of the following: enough is enough. This is not a comment on EEC… indeed, the issues presented therein may well have required judicial intervention and the decision itself does not provide the context that one might likely glean from reading the motion materials as to the seriousness of the situation. More generally, however, our judicial resources are stretched. It has been said that virtual practice has made it much more difficult to resolve cases (for example, because litigants do not enjoy the sting of being in a physical courtroom, face to face with a judge, during potentially hours). Assuming this to be true (and this author believes it), we as marriage practitioners need to make a concerted effort to find creative ways to resolve more cases.

The number of disputes that arise in a contested marital dispute can increase day by day. Some disputes are proper and require judicial review, while others are not. Marriage practitioners should prioritize resolving issues with each other more than ever. If we can’t do that, then we should expect more “house rules” and/or other “rules” to follow – and in the end we’ll be lamenting that catchy phrase, though not so funny in this context: “You get what you get, and you don’t get mad.” The choice is ours as to which direction we want to take.

“Welcome to the Tipping Point: ‘House Rules’ in Contested Custody Litigation”, by Alan Feigenbaum, was published in the New York Law Journal on December 28, 2021. Reprinted with permission.