This is a point of frustration for attorneys who practice matrimonial and family law, such as David Mejias, a partner at Mejias Milgrim & Alvarado of Glen Cove and Hempstead.

Mejias represented a father who was awarded majority custody of his son in 2015 after the boy missed an excessive amount of school while in his mother’s care. The child’s mother appealed, but the appellate division affirmed the original decision granting the father residential custody during the school year.

However, while the appeal was pending, the boy continued to reside with his mother.

“It took more than two years for the appeal to work its way through and that’s unfortunate,” Mejias said. “During those 2½ years the mother worked very hard to alienate the child from his father.”

However, with the 2015 decision affirmed this year by the appellate court, the child was scheduled to move in with his father in time for this school year.

Mejias called the 2015 outcome a “landmark decision,” with the father awarded custody during the school year and the mother during the summer months. The decision resulted from the boy being absent or late 92 school days during grades 1 through 3, according to the attorney. The child’s pediatrician testified at the original trial that there was no medical reason for him to miss so much school, Mejias said, noting that during kindergarten, when the child’s father lived at home, the child’s attendance record was good.

“You worry there may be a gender bias against a father in a custody case,” the attorney told LIBN after the 2015 decision. “But the court basically held that it’s in the best interest of the child to be educated, and this constituted educational neglect on the part of the mother.”

Issues concerning education often arise in custody cases, and courts carefully weigh them.

“Oftentimes, when there is excessive school lateness, there is an underlying issue with the parent, such as depression or drug or alcohol dependence,” matrimonial attorney Jacqueline Harounian told LIBN in 2015. “The parent might not be attending to the child in other ways – the child’s homework might not be getting done, he might not have lunch money, he may be unkempt. All those issues go hand in hand.”

In custody battles involving older children, issues sometimes arise with teenagers cutting class due to inattentive parenting.

“The parent may not be in control, or there is not enough discipline,” Harounian said, adding that courts take educational neglect issues seriously.

“If a child is constantly missing class and education isn’t given a priority, it could be a very significant factor for a change of custody or a change of schedule at a minimum,” she said.

It all comes down to what is in the best interest of the child, Joseph Trotti, a partner at Vishnick McGovern Milizio in Lake Success, told LIBN two years ago.

“If a child is missing an excessive amount of school, the custodial parent doesn’t have the child’s best interest at heart,” Trotti said.
Now that the appellate court has ruled, Mejias has received inquiries for a copy of the brief from attorneys who want to reference it in their custody proceedings.

“This was a landmark case in that it was a creative decision giving custody to the parent who can ensure the child gets to school during the schoolyear, and with the parent who was neglectful regarding education given custody in the summer,” Mejias said. “Ultimately the courts have to determine what’s in the child’s best interest, and in this case, the child’s best interests were served by the very sound and creative choice to make sure my client had custody during the school year while making sure the child’s mother was very much involved in his life.”