I have been thinking about this topic since the Jon and Kate Gosselin situation. I have often wondered whether the court would order a split custody arrangement for them.
So what is split custody? In my experience split custody has to do with families having more than one child(ren). The court is called upon to decide if it is in the best interest of the child to have some children living with the father and some living with the mother.
Usually, this is frowned up on by the court. In the case Ebert v. Ebert, 38 NY 2d 700, 382 NYS 2d 472, 346 NE 2d 240 (1976), the court opined, “the separation of siblings…is frowned upon.” It doesn’t matter if it is a whole sibling or a half sibling.”
But there are circumstances where the court has found that a split custody arrangement is in the best interest of the children and have so ruled. There has to be an “overwhelming need” to separate the children as the court stated in White v. White 209 Ad 2d 949, 619 NYS 2d 428 (4th Dept 1994) a case in which split custody was denied. The court awarded residential custody in that case to the father so that the children could continue to live in a country setting with animals, horses and pets and have access to their grandparents and step siblings. The mother had argued that one of the girls was “quieter” than the other and would be best with her with the more outgoing daughter staying with the father.
In those cases where the court has split custody, cases such as Klat v. Klat 176 AD 2d 922, 575 NYS 2d 536 (2d Dept 1991), the court found that the “best interest of the children lies with a different parent. In Klat, the boys in question simply thrived with different parents and that was demonstrated, and the boys themselves liked the split custody arrangement.
As I said, split custody is usually frowned upon, but where you have a situation where the children (who are at least ten years old) are telling the court-appointed social worker/evaluator that they want a split custody arrangement, and where it can be demonstrated that such split custody arrangement is in the best interest of the child(ren), and where the child expresses a particularly strong attachment to one parent over the other, split custody may be ordered by the court. See also the case Estes v. Estes, 112 AD 2d 568, 490 NYS 2d 939 (3rd Det 1985)
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