Madonna and her ex-husband, Guy Ritchie, are set to appear in front of a New York judge on Wednesday in their custody battle over their 15-year-old son, Rocco.
After touring with his mother for several months on her Rebel Heart tour, Rocco fled to London to spend the holidays with his father, and his new wife, Jacqui Ainsley. Just before Christmas, Madonna appeared before Manhattan Supreme Court Judge Deborah Kaplan, after Rocco made it clear he did not want to return to New York to live with his mom. Kaplan ordered Rocco to return to New York City in time for the start of school in order to sort out his living situation. It’s been more than a month since Kaplan’s court order. Yet, Rocco has remained in London with his father, in defiance of the order.
On February 3rd, Kaplan will decide whether Rocco must return to New York, and his mother, or whether he can stay in London with his father. Under the terms of their 2008 divorce, it was decided the couple’s children would live with their mother in New York, which is why New York has jurisdiction over the custody case.
However, under New York law, a custody decision may be modified if there is clear and convincing evidence that a change is in the best interests of the child. The “best interests of the child” is the standard judges use in deciding child custody battles. However, it is a rather ambiguous standard, and leaves much of the decision up to the judge’s subjective beliefs; especially in New York, where judges aren’t limited by a list of specific factors, but instead have broad discretion to consider all of the relevant circumstances of the case.
There are several relevant factors that Judge Kaplan can, and likely will, consider when making her decision regarding what is best for Rocco Ritchie:
Age – Rocco is fifteen years old, just three years shy of making his own decision of where he wants to live. Some judges believe that the younger the child, the better it is that they live with their mother, or the primary caregiver. So this factor could count in Rocco’s favor since he is already a teenager.
Each parents living situation – one of the most important considerations is ensuring the child has stability and continuity in their daily lives. This could be a wash for both Madonna and Guy, since their careers don’t exactly lend themselves to continuity and stability. Madonna performs concert tours around the world. Meanwhile, Guy could be off directing a movie shoot for months on end. Rocco spent the months before his move to London touring with his mother, and reportedly hated it. Judge Kaplan could interpret this as a plea by the teenager for some stability and continuity in his life. When he’s not off shooting films, Guy and Jacqui live with their three young children in London. And if Rocco, himself, views that as a more stable living situation, the Judge will be inclined to listen.
The child’s preferences – if a child is old enough to voice his own thoughts and feelings, which Rocco is, then the Judge will listen. Here, Judge Kaplan has given Rocco a court-appointed attorney, who will likely be asked on Wednesday about Rocco’s preferences. It is unlikely Rocco himself will be in court, since Rocco is not a party, it is not necessary that he appear. His parents are the two parties in the case. Rocco has his own attorney because of the conflicts of interest in this case between him and his parents, and, more importantly, to give him a voice. That attorney is there to express Rocco’s wishes of where he wants to live, and why. Whether the judge will agree with Rocco depends on what Rocco’s reasons are for wanting to live with his father in London. If he says, through his court-appointed advocate, for example, that he wants to live with his dad because he is more fun and carefree, whereas his mom is too regimented and always makes him go to school and do his homework, then it is unlikely the Judge will be inclined to side with Rocco and his father. Yet, if Rocco expresses, for example, that his mother’s life is too chaotic, and he enjoys the stability and comfort of living with his father, then the judge may be inclined to go against Madonna.
Each parent’s actions – Judge Kaplan will likely review how Madonna and Guy have co-parented their children since their 2008 divorce. If one parent has not shown a willingness to cooperate with the other, and support the other’s relationship with the child, the Judge will not look favorably on that parent. In other words, the judge will not look kindly on a parent who is trying to alienate their child from the other parent. Here, Judge Kaplan ordered Guy Ritchie to return Rocco to his mother after the holidays. Yet, he never did that. In addition, it seems as though Rocco has missed school due to his his extended stay in London. As a result, Guy’s interference in Rocco’s relationship with his mother may hurt his chances at winning custody.
In fact, the judge specifically asked Mr. Ritchie’s attorney in court last month, “has he prevented the child from returning to the U.S.,” to which the attorney responded, “effectively, yes.” If Guy Ritchie does not appear to be cooperating with Madonna in finding a solution for their child, then Madonna may have an edge in the custody dispute.
Judge Kaplan also ordered both parents not to discuss the legal proceedings with their son. If she finds out that Guy has violated that order, too, and has been bad-mouthing Madonna, then that also gives Madonna an advantage.
In the end, money and fame cannot help Madonna get her son back, nor can it help Guy Ritchie. It does not matter that the two parties battling it out are a pop superstar and a Hollywood director, what matters most is what is in the best interests of this fifteen-year-old boy.
Mari Fagel Henderson is a contributor for LawNewz.com. She is also an attorney in Los Angeles, California.