Friday, April 2, 2010

What Divorce Law is Doing to Marriage Part 31

More from the words of Jed Abraham

The court finds that an award of joint custody would not be appropriate in this case. Husband and Wife have a history of disagreement concerning the upbringing of their children. The parties disagreed about the minor children’s medical care and religious training, two central concerns of parents. The evidence has indicated that such agreements were of such magnitude so as to be at least partially responsible for the breakdown of the parties’ marriage. Our case law has firmly established that joint custody is inappropriate where the record suggests that the parties seriously disagree about the upbringing of their children. Although Husband has testified that he proposes to be more accommodating to Wife’s opinions in the future, there is nothing in the record to confirm that he will so completely change his behavior from past practice, and his testimony in this regard may safety be regarded as self-serving.

Furthermore, the evidence has shown that there are significant differences between the residential circumstances of the parties. The minor children currently reside in the marital home with Wife. They have many friends on the block and in the immediate neighborhood. They have their own bedrooms and they share their own separate bathroom. They have use of a spacious backyard. The minor children have lived in the marital home all their lives. Although Husband has provided an adequate apartment for himself and the minor children, the minor children have no friends in the neighborhood, and it has few of the amenities they have been accustomed to since birth. It is certainly in the best interest of the minor children for them to continue to enjoy as much as possible the superior accommodations of the marital home and not to have to dilute such enjoyment by having to establish an alternating, joint residence with Husband.

Dr. Young reported and testified that on the basis of psychological tests he administered to the parties and the minor children, as well as on the basis of interviews he conducted with them, Husband appeared to have the better complement of personality traits to care for the minor children. Nothing, however, in Dr. Young’s findings suggested that Wife would make a poor custodian. While the relative mental health of the parties is certainly a statutory factor for the court to consider, it is only one of several statutory factors which the court is bidden to weigh and balance. The superior mental health of Husband, as reported and testified to by his retained expert, must be set against the many superior attributes of Wife, which have been noted above.

Dr. Karl concluded the Husband initiated untoward activity with the minor children by fondling them while giving them their evening baths and by exposing himself to them at such times. Her conclusions rest in part upon her observations of the interactions of the minor children with “anatomically correct” dolls and upon the marginally elevated, statistically insignificant results of a penile plethysmograph which she administered to Husband. Our case law is divided on the evidentiary value, if any, of anatomically correct dolls and penile plethysmography. A close reading of our case law has led the court to conclude that the evidence adduced by Dr. Karl’s testimony is insufficient to support a finding that Husband sexually abused their minor children, and the court does not indeed believe that such abuse ever occurred. The court’s award herein of sole legal custody to Wife is based exclusively and entirely on the remaining statutory factors set fourth hereinabove.