A custody dispute that has recently been in the national news illustrates the convoluted nature of custody law which has led in this particular case to a very troubling outcome. (I submit that this case is also Exhibit A as to why the public has such a bad impression of law and lawyers, but that is a topic for another day).
The New York Times reports that mother Trisha Conlon was thwarted in her efforts to obtain a custody order keeping her 13 and 14-year-old boys out of the home of her ex-husband and his current wife Kristine. Why did Ms. Conlon request this order? Because the current wife, Kristine Cushing, killed the two daughters she had with the father (and Trisha’s ex-husband), John Cushing Jr. The killings occurred in 1991. Mrs. Cushing was found not guilty by reason of insanity allegedly caused by an adverse reaction to Prozac. She was hospitalized in a mental facility for four years, and was monitored for almost ten years after that. In 2005, the state of California gave her an unconditional release.
Ms. Conlon learned that her boys were in the same household with Mrs. Cushing in 2007, but her ex said not to worry, he and Mrs. Cushing were splitting up. They didn’t. She recently discovered (with the help of a lawyer and a private investigator) that the boys have been in the home with Mrs. Cushing since 2008 – hence her request for a new custody order.
The Court Commissioner deciding the case declined to alter the existing order, which places one boy with each parent during the school year, and keeps them together in one or the other household for holidays and vacations. The Commissioner’s reasoning was that, since the boys had been spending time with Mrs. Cushing since 2007 (even though their mother did not know of it), there is not now any significant change in circumstances that would warrant a change in physical placement. Mrs. Conlon is appealing the decision.
Basically, the standard for a custody determination is the “best interest of the child,” but over the years, certain presumptions have arisen as to which things are likely in a child’s best interest. Most relevant here is the fact that stability and continuity are believed to be in the best interests of all children. To protect stability for children, and to remove any incentive litigious parents might have to keep re-opening any custody decision that is not in their favor, the law requires that in order to obtain a change in an existing custody order, a parent must show that there has been a substantial change in circumstances and that the change is in the best interests of the child. What is a substantial change in circumstances? Well, as you may have guessed, it is a somewhat subjective determination that something has recently changed in a significant enough way that what is in the best interests of the child might have changed as well. In general, the change must be something out of the ordinary rather than, for example, the totally predictable older age of the child or parent.
Ms. Conlon is being tripped up here by the fact that she did not file for a change in custody back in 2007, when she was alerted to the fact that Mrs. Cushing was back on the scene. Apparently then, she was mollified by her ex-husband’s assurances that Mrs. Cushing was leaving him. It is alleged that Mr. Cushing outright lied about the situation and apparently also instructed the boys to lie to their mother about the identity of their stepmother. Since mom and dad now live in different states, Ms. Conlon did not have an opportunity to discover the truth of the situation. If true, this is very troubling. Ordinarily the law does not allow a person to profit from his wrongs in court: we say that a litigant must come into court with clean hands. It would not be good for custody policy in general if the rule were to become that you will be allowed to keep any advantage, as long as the other parent does not find out about it.
There is at least one other troubling thing here: this decision flies in the face of common sense. Yes, we all know that sometimes divorced parents go out of their way to fight with each other, and continue to battle over their children’s custody or upbringing. But sometimes, the concerns of a fit parent are legitimate and deserve consideration. Here, even the Commissioner who made the ruling conceded that if these were his own kids, he likely would not want them living with a woman who had killed two children. But then he dismissed this as an “emotional reaction coming from a parent,” and said that he had to rule dispassionately. I do not think that judges should ignore the law, but a gut-level emotional reaction to the facts of the case here might be a signal that these children may be in a situation that needs further investigation.
Has there been a substantial change in circumstances here? Arguably, the facts that the father lied or that the mother now knows what has been going on are significant changes. The fact that Mrs. Cushing has not so far harmed the boys is not conclusive: the question is whether it is in their best interests to spend time in her household in light of all of the circumstances. Maybe they should. Maybe Mr. Cushing is correct and Mrs. Cushing is a fully cured and loving stepmother. But Ms. Conlon shouldn’t have to take her ex-husband’s word for it – after all, he has already lied again and again. Ms. Conlon should have an opportunity to prove that the best interests of the boys require a new custody arrangement.
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