Wednesday, December 18, 2013

What factors would help get a 50/50 joint legal and physical custody decision overturned on appeal?

Q:  I live in ny and my ex lives in nj. After a 3 yr custody trial in NY, judge awarded us 50/50 joint legal/physical custody. The judge throughout the course of the trial said we repeatedly showed we couldn't even agree that the sky is blue. And when our 5 yr old child is spending the wk my ex, she has to commute to school 3 hrs round trip every day. I'm appealing the decision pro se but was curious to know what factors can be cited against joint physical and legal custody given that we both were fighting for sole custody and have a history of not being able to coparent together & do not live near each other. Even the forensic expert said I should have sole custody & that joint custody would be destructive for our child. Also my ex just filed to pay $0 in support despite earning 4x my income?

A:  David's Answer:  First, there is caselaw supporting the argument that if the parties demonstrate animosity towards one another, joint custody should not generally be awarded. That said, I highly advise against doing your appeal by yourself. You have the right to ask the court to assign you counsel if you cannot afford same. Otherwise, you will be charged with the same knowledge of laws & procedures as an attorney. As for child support, usually a "Bast v. Rosoff" analysis would provide that she pay at least some support if she's earning more. Schedule a consultation with a Bronx Child Custody attorney for a full assessment.   -- David Bliven, Bronx Child Custody attorney (

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