NOTE: Minor typographical corrections have been made for reasons of clarity. The content of the report has not been altered.
(GAL's name & address DELETED)
January 14, 1998
(DELETED) County Supreme Court
Hall of Justice
RE: "Jones vs. Jones"
Index No. (DELETED)
Dear Judge (DELETED):
I am the Law Guardian for "John Jones" (dob: 6/**/91) in the above-referenced proceeding. I am submitting this letter as my Law Guardian recommendation following the six days of trial testimony and the in camera interview with the child.
"John" is the only child of the marriage between "Mr. & Mrs. Jones". He was born while Mr. & Mrs. Jones were each still married to their first spouses. The Jones' were married on January 18, 1992. They had lived together since 1990. "Mr. Jones" commenced this divorce action in April 1996. "Mrs. Jones" moved out of the marital residence in the summer of 1996 following an Order of Protection from justice court, and she then moved in with "Mr. Smith". "John" remained in the marital home with "Mr. Jones". Shortly thereafter, "Ms. Brown" moved into the marital home with "Mr. Jones". This court issued a temporary order of custody and visitation dated 8/31/96, which provides equal time to each parent.
"Mr. Jones" and "Ms. Brown" reside in the marital residence at (DELETED). "Mr. Jones" is employed at (DELETED). He testified that his current work schedule is an alternating schedule of four days per week, from 6:30 AM to 4:10 PM.
"Mr. Jones" has a daughter, "Jane",from his prior marriage. He testified that he has doubts that she is really his child, and that he has neither paid child support nor had any contact with her since approximately June 1994. His ex-wife testified that "Jane" is "Mr. Jones'" child. Both the ex-wife and "Mr. Jones'" father testified that "Mr. Jones'" parents have visitation with "Jane" three to four times each year. There was no testimony that "John" has any contact or any relationship with "Jane".
"Ms. Brown" is not divorced. She and her husband share joint custody of their son "Bill". Her husband has physical residency of "Bill", and "Ms. Brown" has visitation. She works as a receptionist in (DELETED). Witnesses testified that "John" has a good relationship with "Bill".
"Mrs. Jones", "Mr. Smith", and their one-year old son "Scott" reside at (DELETED). "Mrs. Jones" has two children from her first marriage, "Jill and David Johnson". The children reside with their father, and have regular visitation with "Mrs. Jones". Witnesses testified that "John" has good relationships with all three of his maternal siblings. "Mrs. Jones" is not presently employed, and she testified that she is home most of the time. "Mr. Smith" has joint custody arrangements of his two daughters "Melody and Sharon", and he is divorced.
The parties' homes are fairly near each other and in the same town, however they are in different elementary school districts. "John" attends the school for "Mrs. Jones'" residence.
Testimony indicated that "Mrs. Jones" was primarily responsible for taking care of "John" while the family resided together. She was at home with "John", while "Mr. Jones" worked full time. She testified that prior to the parties' separation, "John" was with her 90 to 95 percent of the time. "Mr. Jones'" activities with "John" during this time period included assisting with toilet-training, going fishing, feeding the ducks, and going for walks.
Although the temporary order referenced above provided equal time to both parents, testimony at trial revealed that "Mr. Jones" had taken "John" to be with "Mrs. Jones" for more time than the order provided. The parties have an equal number of overnight visits with "John" every two-weeks period, but "Mr. Jones" takes "John" to "Mrs. Jones'" home in the mornings on his week-days, and retrieves "John" from her home after work. Despite all of "Mr. Jones'" complaints about "Mrs. Jones'" parenting ability, he was essentially using her as his day-care provider.
As a result of this arrangement, on weekdays when "John" has spent the night with "Mr. Jones", "John gets up at 5:10 AM, is delivered to "Mrs. Jones'" home at 5:45 AM still in his pajamas, where he goes back to bed until it's time to get up for school. During the summer vacation, "Mr. Jones" took "John" to his parents' cottage for baby-sitting while he worked. "Mr. Jones" testified that he had a baby-sitter for "John", the 70-year old mother-in-law of a co-worker. He further testified that "John" had only been in this sitter's care once before, and he was unable to provide her last name.
The testimony showed that "Mrs. Jones" has continued to do most of the parenting chores for "John" since the parties separated. He gets on and off the school bus from her home. She takes care of his doctor and dentist appointments, with the exception of the August 1996 checkup done by "Mr. Jones". She registered him for kindergarten. She is involved with his school activities and his assignments. She got him involved with swimming lessons, t-ball, cub scouts, and the library. She even does "John's" laundry of clothes that he wears and keeps at "Mr. Jones'" home. "Mr. Jones" testified that he also assisted with "John's" involvement with t-ball, and that his current activities with "John" include fishing, going for walks, using the bow & arrow and bb guns, and watching fishing and hunting shows on television.
"Mr. Jones" testified that he and "Mrs. Jones" do not have a lot of communication regarding "John", and that he tries to avoid her. In contrast, "Mrs. Jones" testified to her efforts to keep "Mr. Jones" informed of "John's" activities. She stated that she informs "Mr. Jones" both verbally and in writing, and that it is her obligation to do so.
The marital residence is listed for sale. "Mr. Jones" testified that he does not know where he will live after the house is sold, and that he has not made any purchase offer or entered into any lease agreement for a new residence. He wishes to stay in the (city) school district, and plans that "Ms. Brown" will move with him. "Mrs. Jones" testified that she has no plans to move from her current residence. Neither parent has any plans to marry their current domestic partner.
Witnesses at the trial testified as to "Mrs. Jones'" use of prescription and over-the-counter medication. "Mr. Jones", however, stated that her use of these medications did not impair her ability to function around the house or to care for "John". He also stated that he had experimented with "Mrs. Jones'" prescription medication to see what effect it would have on him. Witnesses also testified regarding "Mr. Jones'" alcohol consumption, including his own testimony that he drinks to relieve stress. There was also testimony regarding "Ms. Brown's" history of marijuana use. Despite all this testimony, neither parent has hesitated to send "John" to the other home while this divorce has been pending. Furthermore, there was no evidence of any harm to "John" due to any drug or alcohol use.
"Mr. Jones" seeks custody of "John", and for "Mrs. Jones" to have visitation. He proposed visitation consistent with her schedule to the "Johnson" children, on alternating weekends, one weekday each week, and split vacations and holidays. "Mrs. Jones" testified that she would agree to joint custody, with primary physical residence to her. She would agree to "Mr. Jones" having visitation whenever he can get off work, up to three weekends each month, one weekday each week, and half of the summer.
My recommendation to the court is that the parties have joint legal custody, with primary physical residence to "Mrs. Jones" and substantial periods of residence, i.e. visitation, to "Mr. Jones".
I recommend a basic visitation schedule of at least alternating weekends and weekday visits up to two days each week. I would not oppose additional weekend visitation so long as "Mrs. Jones" is not employed. Regarding the weekday visit, I recommend that this not be overnight, so as to avoid getting the child up so early on a school day, only to have him go back to bed at his mother's home. Regarding holidays and vacations, I recommend that the parties arrange for equal time for "John's" vacations, including summer vacation, the Christmas holidays, and the week-long breaks during the school year. Regarding Monday holidays, I recommend that whichever parent had the child for that weekend keep the child through the Monday holiday.
Both parents have other families, and perhaps they could coordinate the weekend and weekday schedules so that "John" can maximize his involvement with both families. Both parents have a lot to offer "John", and they need to get past their own differences so that they can focus on what is best for their child.