Nasty child custody battles are, unfortunately, a common experience for lawyers who practice family law. Usually both parents insist that they are only doing what’s best for the children, even as their own egos, emotions and (sometimes) need for revenge prevent the children’s best interests from being the primary consideration. Elder law attorneys often see something similar in guardianship and conservatorship battles over parents.

Late in 2002, the four children of Shirley Nimon had a vigorous disagreement over where their mother should live. Ms. Nimon had been diagnosed as suffering from dementia and needed placement in a nursing facility. Because Ms. Nimon lived in New York at the time that state’s courts were scheduled to hear the dispute. Before submitting the matter for decision, however, the children entered into an unusual agreement: Ms. Nimon would spend six months of each year living in a facility near one daughter in Pennsylvania, and the other six months in a facility near the other daughter in Massachusetts.

After her second move brought her back to Pennsylvania, however, it was obvious that the repeated transfers were hard on Ms. Nimon. Experts—and her own doctors—agreed that it was poor care to disrupt a dementia patient and destroy the routines that helped her maintain some level of functioning. In order to eliminate the "transfer trauma" associated with repeated moves, the Pennsylvania daughter asked the New York court to change the arrangement and leave her mother in Pennsylvania permanently.

The daughter in Massachusetts agreed that their mother should not have to move every six months, but objected to leaving her mother in Pennsylvania. She argued that she had the closer relationship with her mother, and that allowing her mother to stay in Pennsylvania would effectively penalize her for having entered into the agreement in the first place. Meanwhile Ms. Nimon’s sons lined up on the side of the Pennsylvania daughter, urging the judge to leave their mother where she was.

The New York judge weighed the competing interests of Ms. Nimon’s children and decided that she should make one last change by moving back to Massachusetts—but that she should stay there, with that daughter as guardian, for the rest of her life. The judge cited the close mother-daughter relationship in deciding between the competing plans.

The New York Supreme Court Appellate Division (the intermediate appellate court) disagreed, even as it recognized the difficulty of the decision and the careful analysis the trial judge had made. The central issue in such questions, said the appellate judges in a short "memorandum" opinion, should be the best interests of the ward. Fairness to her children was not nearly as important and, since the experts agreed that Ms. Nimon should not be moved again, the court ordered that she continue to reside in Pennsylvania with the Pennsylvania daughter as guardian. Matter of Nimon, February 4, 2005.

There is another interesting aspect to the Nimon case. Too often, courts in one jurisdiction insist on retaining physical control over the ward in guardianship proceedings, despite what may obviously be the patient's best interests. We have seen cases in which judges have refused to permit a ward to relocate because, for instance, the judge could not imagine that the ward would want to live in a cold weather, or a desert area, despite the fact that the ward was already in another state living near or with family members. This case was unique in that regard, since the New York court was deciding not between New York and another state, but between Pennsylvania and Massachusetts. Perhaps that choice made it easier for the judges, at both the trial and appellate levels, to impartially consider Ms. Nimon's best interests.

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