Nearly a decade ago, this column called attention to the fact that the "willingness to foster" factor in custody litigation—the disposition of one parent to foster the relationship between the child and the other parent—was emerging as something of a super-factor, wielding a force capable of swamping an array of other variables that cut in the opposite direction. Timothy M. Tippins, "Child Custody Factors: Relationship With Both Parents Gains in Importance," NYLJ (Jan. 3, 2013). A recent appellate decision, Austin ZZ. v. Aimee A., 191 A.D.3d 1134 (3d Dep't 2021), seems to propel this factor to an apotheosis of power previously unimagined. This article will explore the trove of tragic consequences that can ensue from rigorous application of this factor.

The Concept

It is axiomatic that "[t]he only absolute in the law governing custody of children is that there are no absolutes." Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93 (1982). Numerous factors or variables are considered by the court in reaching a decision that it believes to be in the child's best interests. Neither the law nor behavioral science research has ever established an objective weighting system of relative priority of the various factors in relation to one another. Each judge applies them as he or she sees fit in the individual case. This does not mean, however, that they are of equal importance. To borrow an Orwellian phrase, "some are more equal than others." Indeed, a principal benefit of reading custody decisions is not the discovery of earth-shattering blackletter legal principles. Rather, its value lies in the discernment of patterns and trends that reveal which of the many potential factors carry current cachet.