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In a sad story from Ulster County, the Third Department, in In the Matter of O’Dale UU v. Lisa UU, has upheld a trial court decision granting the father of a 9 year-old child sole legal and physical custody after the mother admitted to, over a three-month period, giving the child excessive amounts of the over-the-counter drug Benadryl to help him sleep.

The facts contained in the decision (which you can read in full here) reveal that this was not a “simple” case of parental negligence. While the mother clearly made some terrible decisions, there is no indication that she wished to harm the child, or even wanted him to sleep simply to avoid the rigors of parenting. According to the appellate court, the child was prone to “meltdowns,” including bouts of hyperactive behavior and self-harm, that were so severe as to impair the child’s ability to perform daily tasks like showering or brushing teeth. Apparently, said “meltdowns” also harmed the child’s ability to sleep, and as a consequence, the mother gave the child two to three times the standard dose of Benadryl, an antihistamine, three or four times a week for three months. She was “caught” when the child’s father observed his son acting, in his words, “like a zombie” while in the care of the mother.

The trial court and appellate court characterize this as a case of neglect, rather than abuse. That might surprise some readers who imagine that “neglect” represents a lack of proper care, while “child abuse” implies some kind of harmful affirmative act. Generally speaking, this is true, but the definitions of both a “neglected child” and an “abused child” in New York law are long, complex, and incorporate behaviors that are not intuitive. You can read those definitions, which are part of the Family Court Act, here.

The O’Dale UU case reveals the two-step procedure in New York law that can occur when an allegation of neglect (or abuse) is filed. First, after the child’s father filed a complaint, the local Department of Social Services commenced a neglect proceeding against the mother. Only after the mother was found to have neglected the child by failing to provide appropriate medical care – part of the definition of neglect found in the above-linked statute – was the father able to petition for a change in custody.

A proceeding to change a custodial arrangement involves only the parents as parties, with no assistance from a social services body. The parent petitioning for a change in custody must show a change in circumstances since the previous custodial determination (whether that occurred by agreement or court order), and must show that said change in circumstances mandates that the child’s best interests would be served by a change in custody. In O’Dale UU, the petitioning father managed to show this and as a result was granted full legal and residential custody, with the mother having visitation every other weekend. A sad case, no doubt, but one in which the child’s own safety was placed above the desires of the parents.

If you need to know more about modifying a custody agreement or order, please check out modification enforcement, or simply contact our firm.