Jacqueline Newman - New York City Divorce Lawyer

Originally Published by Jennifer O’Neill on Yahoo! News, May 15, 2015

Scandal-magnet reality star Jon Gosselin is making headlines again. The Jon and Kate Plus 8 alum and father of eight is reportedly seeking custody of his daughter Hannah, 11, from ex-wife Kate Gosselin, who has had primary custody of their children since the couple split in 2009.

During a visit to her father’s digs last month, the tween allegedly told Jon, 38, that she didn’t want to return home to the family’s mansion in Wernersville, Penn., citing “cruelty” from her mother, 40, whom she says is forcing her to film new episodes of their brood’s TLC series Kate Plus 8, according to tabloid reports.

Kate Gosselin and her children with ex Jon Gosselin at their home in Wernersville, Penn. (Photo: Getty Images/Donna Svennevik)

The exes were on terrible terms when a judge granted custody of the sextuplets Alexis, Hannah, Aaden, Collin, Leah, and Joel, plus twins Cara and Madelyn, 15, to Kate six years ago. “For a while I was saying we’re not just on different pages, we’re in different books,” Kate told People that year. “But now I think we’re in different libraries.“ Fast-forward to this past November, and little seems changed. “There is no real relationship [with Kate], like we don’t talk,” he told Extra. “[Co-parenting is] just not working at this point in time.”

But once custody has been awarded, “it will only be changed based on a ‘change of circumstances,’” according to Margaret Brinig, a Notre Dame Law School professor who specializes in family law, contracts, and dispute resolution. “And the burden of proof would be on the non-custodial parent to show those changes,” she tells Yahoo Parenting.

Factors that the courts would consider include ties with other siblings, attachment to each spouse, and wishes of the child if he or she is “older” (typically more than 14 years old), says Brinig. “Normally children are kept together, but sometimes they want to live with the other parent, and if that’s what is going on, a court might agree.”

The likelihood of Jon — who recently worked as a waiter and now as a DJ, and who was just evicted from his home in October 2014 — overturning the status quo isn’t likely, says family law attorney Jacqueline Newman. “It is technically possible but very uncommon,” Newman, a managing partner at New York City divorce law firm Berkman Bottger Newman & Schein, LLP tells Yahoo Parenting. “Courts don’t like to separate siblings, as the there are studies that show children do better with their siblings, and courts want to maintain as much of a family unit as possible post divorce.”

Custody decisions are based on the best interests of the child, above all — meaning that Jon will have to show the court all the ways in which living with Kate is not in Hannah’s best interest. “Custody is a moving target because people, arrangements, and situations change,” says Newman, adding that the idea that Hannah isn’t interested in filming for her family’s reality series any longer likely isn’t enough of a change to constitute removing her from Kate’s care. “The kids have filmed for long time so for him to say it’s bad for his daughter all of a sudden, weakens his claim. He has an uphill battle.”

As for the reported claim of cruelty against Kate, Newman says that will have to be proven before it’s considered. “You have to remember this is an 11-year-old girl,” she says. “She may find it to be cruel if Kate took away her cell phone.”

If Jon goes ahead and files a motion for change of custody, a psychiatrist or therapist will typically be appointed to investigate what is going on. And that could have ramifications for Hannah’s siblings as well. “If the court uses reasoning that ultimately decides it’s not in the best interests of the children to be filmed, that standard could be applied to all of the other children as well,” says Newman. “And if it’s proven that Kate is being cruel to the kids, every one of them is game for a custody change.”

At the same time, he’ll be under scrutiny, too. “Courts will look at his stability,” says the attorney. “What is his situation and what can he provide his kids? What’s the child’s life going to be like with him? He’s a DJ — will he be out all night? There to help with homework?” Going against Jon is the fact that Kate has already been compared to Jon and deemed the more suitable caregiver.

“But there’s a lot of middle ground in situations like this,” Newman adds. “Maybe Hannah needs to spend less time with mom and more time with Jon. Within their current custody agreement there is room to arrange different scenarios. If the parents are really looking to figure out what’s best for their daughter, I’m sure they could come to a resolution that didn’t require overhauling their custody agreement  — if they really wanted to.”