New York Times reports<\/a> 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.\u00a0 Why did Ms. Conlon request this order?\u00a0 Because the current wife, Kristine Cushing, killed the two daughters she had with the father (and Trisha\u2019s ex-husband), John Cushing Jr.\u00a0 The killings occurred in 1991.\u00a0 Mrs. Cushing was found not guilty by reason of insanity allegedly caused by an adverse reaction to Prozac.\u00a0 She was hospitalized in a mental facility for four years, and was monitored for almost ten years after that.\u00a0 In 2005, the state of California gave her an unconditional release.<\/p>\nMs. 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.\u00a0 They didn\u2019t.\u00a0 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 \u2013 hence her request for a new custody order.<\/p>\n
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.\u00a0 The Commissioner\u2019s 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.\u00a0 Mrs. Conlon is appealing the decision.<\/p>\n
Basically, the standard for a custody determination is the \u201cbest interest of the child,\u201d but over the years, certain presumptions have arisen as to which things are likely in a child\u2019s best interest.\u00a0 Most relevant here is the fact that stability and continuity are believed to be in the best interests of all children.\u00a0 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<\/em> that the change is in the best interests of the child.\u00a0 What is a substantial change in circumstances?\u00a0 Well, as you may have guessed, it \u00a0is a somewhat subjective determination that something <\/em>has recently changed in a significant enough way that what is in the best interests of the child might have changed as well.\u00a0 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.<\/p>\nMs. 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.\u00a0 Apparently then, she was mollified by her ex-husband\u2019s assurances that Mrs. Cushing was leaving him.\u00a0 It is alleged that Mr. Cushing outright lied about the situation and apparently also instructed the boys to lie to their mother<\/em> about the identity of their stepmother.\u00a0 Since mom and dad now live in different states, Ms. Conlon did not have an opportunity to discover the truth of the situation.\u00a0 If true, this is very troubling.\u00a0 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.\u00a0 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.<\/p>\nThere is at least one other troubling thing here: this decision flies in the face of common sense.\u00a0 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\u2019s custody or upbringing.\u00a0 But sometimes, the concerns of a fit parent are legitimate and deserve consideration.\u00a0 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.\u00a0 But then he dismissed this as an \u201cemotional reaction coming from a parent,\u201d and said that he had to rule dispassionately. \u00a0I 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.<\/p>\n
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.\u00a0 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.\u00a0 Maybe they should.\u00a0 Maybe Mr. Cushing is correct and Mrs. Cushing is a fully cured and loving stepmother.\u00a0 But Ms. Conlon shouldn\u2019t have to take her ex-husband\u2019s word for it \u2013 after all, he has already lied again and again.\u00a0 Ms. Conlon should have an opportunity to prove that the best interests of the boys require a new custody arrangement.<\/p>\n","protected":false},"excerpt":{"rendered":"
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.\u00a0 (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 […]<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[45,122],"tags":[],"class_list":["post-14304","post","type-post","status-publish","format-standard","hentry","category-family-law","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/14304","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/17"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=14304"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/14304\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=14304"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=14304"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=14304"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
![\"\"](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2011\/08\/KingCtySuprCt-150x150.jpg\" "\\"KingCtySuprCt\\"")
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.\u00a0 (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).<\/p>\n