I read the factors the judge shall for child custody, and I would like to know how can a judge disregard those factors and use her discretion. Is this legal, and what can I do about it?
Child Custody Lawyer
I would suggest you contact an attorney immediately. There is the possibility of appealing her decision, but there are certain requirements to making an appeal work. Plus, it might not be the best way to get what you want. You can also Petition to Modify Custody or file a Motion for Reconsideration. I wish you the best of luck.
As Attorney Robbins stated, you have the possibility of appealing the court's decision. However, your attorney might be able to point out ways that the court actually followed the law. The factors provide some "wiggle room," while encouraging thoughtflness, and different judges sometimes focus on different factors.
This answer does not form an attorney-client relationship. The Law Offices of Alison Silber suggests that you obtain legal counsel.
It may be helpful for you to understand that a judge can have broad discretion within the framework of the factors he or she is expected to consider under the new custody code. Judges generally try to do the best they can with custody situations, but they generally don't know dad from Adam or mom from Eve (except for what may be brought out at the hearing) and they may have their own unspoken preconceptions about how situations like yours should be handled.
In real-world terms it is easy for the judge to issue an order and then retroactively find justification consistent with the factors identified in the statute, but more often -- right or wrong -- they really do consider the factors even if they don't weigh them the way others think they should. You don't offer the reason you think the judge in your case disregarded the factors, so I can shed no light on the situation you are actually facing.
Also in real-world terms, custody appeals to the Superior Court (assuming that the order you object to was issued less than thirty days ago) are problematic at best even if you have a good, solid case; even a "fast track" appeal takes many months, and in the meantime you (and more important, the children) are stuck living under the new regime unless you can get the judge (or the Superior Court) to stay the new order. Also, you can bet that the judge would write her opinion in a way that shows that she *did* consider the factors, even if you believe that she did not. Even if you win an appeal, you can't pull the water that has passed under the bridge back upstream, and moving forward any court would have to consider the reality of how the children have been living during the time the appeal was pending.
Assuming that you are still within your thirty-day appeal period and want to look into the matter further, I urge you to sit down with a qualified family law attorney in your area and find out where you stand, what your options are, and which ones might be most worth your time, effort and money to pursue.
Attorney Michael B. Greenstein
This response is offered for informational purposes only, does not create a lawyer/client relationship, and should not be taken as legal advice.