Disputes over child custody can create significant complications in a family law case. Unlike financial issues, such as child support, the legal standard for determining custody arrangements depends entirely on subjective factors that are unique to each case. No formulas or calculations can determine the best interest of a child. New York City family courts therefore have a certain amount of discretion to make decisions about child custody based on the available facts. In emergency situations, this requires a quick response. A pending judicial ethics complaint against a New Jersey judge, who ordered the transfer of a child from one parent to another based on what allegedly turned out to be incorrect information, shows just how complex these disputes can become. Matter of DeAvila-Silebi, Docket No. ACJC 2016-001, complaint (N.J. ACJC, Oct. 20, 2016).
Most states use the “best interest of the child” standard in child custody decisions. N.Y. Dom. Rel. L. § 240(1)(a). This means that the paramount concern for the courts is finding an arrangement that is most beneficial to the child or children. In a custody dispute between parents, each parent can present evidence to support their claims, but the final decision should not be based solely on whether either parent has somehow earned the right to custody. Under New York law, custody by a parent or another individual who has been convicted of an offense involving domestic violence or certain other offenses is presumed not to be in a child’s best interest.
The complaint in DeAvila-Silebi addresses the use of police by a judge to transfer a child from one parent to the other, based on what she claimed was an emergency situation. The respondent judge reportedly received a phone call early on a Saturday morning in May 2015. The caller claimed to be an attorney for the mother in an ongoing custody dispute in Essex County, New Jersey, and she told the judge that the child’s father was keeping the child in Fort Lee, a borough in Bergen County, despite the mother having the right of custody at that time. She reportedly called the Fort Lee Police Department and asked them to have an officer accompany the mother while she retrieved the child. The police did so, and the child was returned to the mother’s custody.