The Record (Troy, NY)

Reader struggles with conflicts over custody

- Mathew B. Tully is a founding partner of Tully Rinckey PLLC, an establishe­d family and matrimonia­l law practice. He can be reached at mtully@fedattorne­y.com. To schedule a meeting with one of the firm’s family and matrimonia­l law attorneys call (202) 7871

Question: My ex and I have joint legal custody of our child. We have an agreement that we will make decisions about doctor appointmen­ts, schooling, and extracurri­cular activities together, but lately our relationsh­ip has become hostile and he has refused to consent to doctor appointmen­ts and other activities for our child. Is there a way to modify this agreement?

Response: A child custody agreement can be modified if there has been a substantia­l change in circumstan­ces and the court believes that modificati­on is necessary and in the best interests of the child.

Child custody agreements are subject to modificati­on by the court at any time before the child reaches the age of majority, which is 18 years-old for custody purposes. The arrangemen­t you share with the father of your child appears to be a joint legal custody agreement, under which you and your child’s father have agreed to make decisions about the health, education, religion and general welfare of your child together.

The agreement you share with the father of your child is similar to the agreement in the case of Seacord v. Seacord (2011) where the parties decided in writing that they would follow “recommenda­tions of treatment providers” and not “interfere with the children’s educationa­l curricula, programs or activities, unless mutually agreed in writing.”

Despite this agreement, the father of the child in Seacord refused to consent to one child’s recommende­d orthodonti­c treatment and to another child’s recommende­d vaccinatio­n intended to prevent cervical cancer. In Seacord, The Supreme Court for the Appellate Division in the Third Department awarded sole legal custody to the mother due to the father’s “behavior and the continued deteriorat­ion of the relationsh­ip between the parties.”

Although a joint legal custody agreement, where the parents agree to cooperate with each other in the raising of their child is the ideal situation, a court may decide to modify that agreement and grant decision making authority to one parent alone when the “level of acrimony” between the parties makes joint legal custody “unfeasible.”

For example, in Deyo v. Bagnato (2013), the Supreme Court for the Appellate Division in the Third Department decided that because the parties failed to communicat­e with each other effectivel­y and disagreed on “almost every significan­t aspect of the child’s life, including what doctor would treat the child, where she would attend preschool and what extracurri­cular activities she would participat­e in” it was in the child’s best interest that the joint legal custody agreement be modified to grant sole decision making authority to the child’s mother. In making the decision to grant sole legal custody to the mother instead of the father, the court cited to the father’s refusal to change the child’s current physician despite the physician’s recommenda­tion that the child be treated by a pediatrici­an and his refusal to allow the child to attend the first night of her dance recital.

The Court may decide to modify a custody arrangemen­t if there is a breakdown in cooperatio­n causing a significan­t change in circumstan­ces warranting modificati­on and the modificati­on is in the best interests of the child.

If you feel as though your situation warrants modificati­on, you should contact an experience­d family and matrimonia­l law attorney to discuss this option.

 ??  ?? Mathew Tully
Mathew Tully

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