Bethenny Frankel's divorce has dominated Page Six and the tabloids since she first announced her separation from her ex Jason Hoppy in 2012. Though their divorce was finalized two years ago, Frankel and Hoppy continue to fight for custody of their eight-year-old daughter, Bryn. Recent headlines have involved Frankel posting pictures of herself wearing her daughter's pajamas on social media and the overdose of Frankel's boyfriend, Dennis Shields. Hoppy has weaponized these incidents as a bid to have sole legal and physical custody of Bryn. Frankel uses the couple's history of domestic violence to paint Hoppy as an unfit parent. The big question in front of the Court right now is Shields' overdose. Are accusations of addiction of a third party enough to award custody to one parent?
The standard for custody in New York is best interests of the child. The Courts consider multiple factors such as parental stability, who was the primary caregiver, mental and physical health of the parents, abuse/neglect of either parent or the child(ren), preferences of the child (put forth by their own attorney appointed by the court), and drugs and alcohol, amongst other factors. Once custody is determined, the threshold changes to a substantial change in circumstances prior to determining what is in the child’s best interests. As Frankel and Hoppy settled custody as part of their divorce (NY requires all issues to be resolved prior to a judgment of divorce), Hoppy would have to demonstrate how Shields’ death is a substantial change in circumstances warranting a change in custody.
Hoppy has an uphill battle because he has the burden to prove. This is not insurmountable however, as the courts do not take drug abuse lightly. The safety and wellbeing of a child is the paramount concern for judges. Hoppy would have to show some combination of the following:
- Shields was an addict;
- Frankel knew that Shields was an addict;
- Shields was using/under the influence of drugs in the presence of Bryn;
- Shields was left alone to care for Bryn;
- Frankel brought Bryn around Shields despite knowing his addition history; and
- Hoppy was not aware of Shields’ addiction history.
Hoppy’s next step would be to link these factors to poor judgment and Frankel’s inability to properly care for Bryn. If Hoppy were my client, I would link Shields to other injurious choices made by Frankel; Frankel’s behavior on reality television, which some may view as erratic and aggressive, and Frankel’s relationships with other addicts and alcoholics, such as spending time with Luann de Lesseps who recently was in rehab for alcohol addiction following an attack on a police officer and DUI.
Conversely if I were representing Frankel, I would explain to the court that the company my client keeps does not through osmosis make Frankel a bad parent. I would explain that Frankel was not present during the overdose, that she did not leave Bryn alone with Shields and that Bryn was always well cared for, how social media and reality television is my client’s job and provides significant amounts of money for Bryn, that during Frankel’s parenting time the cameras are turned off, and that there is no immediacy of harm to my child. The court would consider the evidence and testimony submitted by both parties, as well has give credence to Bryn’s attorney’s position.
Ultimately, it is unclear how the court will rule at this time. There are facts that only the parties and their attorneys know, which the media has not reported. The totality of the circumstances and not any one incident may make the difference between custody and visitation. However, to any client I would caution their involvement with a known addict. Once the court or ACS is involved with your marriage or family, everything is under a microscope. You only want to be seen in a favorable light.