CUSTODY AND VISITATION CASELAW (2003-2004)
by
Betsy R. Ruslander, Esq. and
George E. Reed, Jr., Esq.
A. First Department
Petitioner’s interference with
respondent’s relationship with child supported award to respondent. Recommendation of the Law Guardian and the
reports of two psychologists supported same result. Note use of term “recommendation.” Matter of Tyrone G., 4 A.D.3d 205 (1st
Exceptional circumstances due to
inadequate guardianship justified award to grandparents (ACS involved). Matter of Joseph S., 3 A.D.3d 446 (1st
Criminal history of respondent’s
boyfriend and respondent’s interference with petitioner’s visitation justifies
award of custody to petitioner. Matter
of Raymond G., 3 A.D.3d 461 (1st
NY has jurisdiction to reconsider
custody order issued by another country that failed to consider domestic
violence; foreign
court declined jurisdiction. Hector
G. v. Josefina P., 2 Misc. 3d 801, 771 N.Y.S.2d 316 (Sup.
Role of Law
Guardian. Stipulation of settlement in divorce case
provides for prior consultation between the parties on matters concerning the
children and for submission of parental disputes over such matters to the law
guardian; stipulation
did not detract from plaintiff’s authority as sole custodian. Lewittes
v. Lewittes, 2 A.D.3d 295 (1st
Grandparent awarded custody over
parent; parent
had had limited involvement for several years.
Michelle V. v.
Lillian P., 1 A.D.3d 272 (1st
Interference; appellate review. Mother’s efforts to estrange father warrants
change of custody. Standard for review
is great respect: Family Court's
determination in a custody matter must be accorded great respect unless it
lacks a sound and substantial basis in the record (see Matter of Gago
v. Acevedo,
214 A.D.2d 565 [2d
Custody to mother based on showing
that she raised and supported him as a single parent since father demanded she
leave the marital residence in 1990. Mark-Weiner
v. Mark, 1 A.D.3d 158 (1st
Trial -- burden
of proof -- effect of agreement. Custody changed based on substantially changed
circumstances; this case involved modification, not relocation, because parties
had agreed to custody arrangement after move.
Petitioner met his burden to show that continued adherence to the
existing agreement would not be in the child's best interests. Daniel R. v.
Liza R.,
309 A.D.2d 714 (1st
Trial -- effect of agreement. “Although the totality of the circumstances
of the case and the best interests of the child are factors to be considered in
all cases where modification of custody is sought (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1982];
Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93-95 [1982]),
where the parties have entered into an agreement, the agreement is entitled to
considerable weight (see Eschbach, 56 N.Y.2d at 171) and it is incumbent on
the party seeking the change to show that in light of changed circumstances
continued adherence to the agreement would not be in the children's best
interests (see Tirschwell v. Beiter, 295 A.D.2d 266 [2002];
Karetny v. Karetny, 283 A.D.2d 250, 724 N.Y.S.2d 410
[2001]).” Party seeking
modification of agreement must establish that it is in child’s best interests. Steck v.
Steck, 307 A.D.2d 819, 820 (1st
Child’s preference is not dispositive. Martin
V. v. Karen
Beth G., 305 A.D.2d 305 (1st
Parental failure to cooperate with
visitation warrants loss of custody. Matter
of Nathan J.H., 305 A.D.2d 293 (1st
Custody changed where mother did
not interact or communicate with the child.
Matter of Felipe B., 304 A.D.2d 324 (1st
B. Second Department
Custody to father, who has stable
home; mother
moves a lot. Cornell C. v. Cynthia H., -- A.D.3d -- (1st Dep’t
Grandparent visitation petition
dismissed; child
lives in
Order directing return to
Custody award upheld as quality of
the home environment and ability of each parent to provide for the child
supported transferring custody to the respondent. Faunteleroy
v. Mercado, 5A.D.3d 482 (2d
Appellant not denied right to
counsel. Fuentes v. Fuentes, 5 A.D.3d 484 (2d Dep’t 2004)
In camera.
In camera not requested in Family
Court, error not preserved for appellate review.
Discretion of
Family Court whether to hold in camera.
Award of custody to parent over
grandparents upheld; grandparents failed to make threshold showing of
extraordinary circumstances. Matter
of Rudy v. Mazzetti, 5 A.D.3d 777, 774 N.Y.S.2d
171 (2d
Trial required for permanent order
of custody. Family Court, without a hearing, transferred
custody from the mother to the father on the ground that the mother was not
complying with the visitation provisions of the judgment of divorce. Remanded for full
evidentiary hearing. Khan v. Dollay, 6 A.D.3d 437 (2d
Pleading. Father who did not
petition for custody but only disputed health-care decisions should only be awarded
joint decision rights and responsibilities regarding health-related decisions,
not joint custody. (Note: failure to petition for custody not stated as
determinative.) Penninipede
v. Penninipede, 6 A.D.3d 445 (2d
Grandparent denied custody as
foster parents were only parents the child had ever known. James v. Hickey, 6 A.D.3d 536 (2d
Change in custody denied as not in
best interest. Crespo
v. Figueroa, 6 A.D.3d 612 (2d
Custody properly awarded to parent
who had relinquished custody to grandparents as a teenager; parent demonstrated
maturity and ability to care for child. Ortiz v. Ortiz, 6 A.D.3d 619 (2d
Custody decision had sound and
substantial basis in the record. Skratt
v. Henry, 6 A.D.3d 719
(2d
Custody award to respondent proper
as appellant was hostile and interfered with respondent’s visitation. Mother filed petty or baseless violation
petitions. Greene v. Gordon, 7 A.D.3d
528 (2d
Great-grandmother properly denied
custody and visitation with subject children during pendency
of permanency hearing. Matter of
Jessica F., 7 A.D.3d 708 (2d
Custody properly awarded to
respondent as appellant had attempted to exclude children from respondent’s
life. Jarushewsky
v. Baez, 7 A.D.3d 713 (2d
Custody transferred to respondent
as petitioner’s relocation not in children’s best interests. Jones v. Jones, 4 Misc. 3d 1004(A), (
Petitioner granted custody as
respondent frustrated petitioner’s visitation with child. Perez v. Sepulveda, 4 Misc. 3d
1005(A), (
Court erred in suspending all visitation without hearing on best interest of the child. Appellate Division modified, deleting the
provisions thereof directing each party to pay the sum of $5,000 to the
forensic evaluator and ordering that if the husband fails to pay, sole custody
of the parties' infant child shall remain with the wife. “The Supreme Court
erred in suspending all visitation and telephone contact between the husband
and the parties' infant child based upon the husband's failure to pay his share
of the fees of the forensic evaluator and law guardian. The Supreme Court disregarded
what should have been its first concern, "the welfare and the interests of
the [child]" (Matter
of Lincoln v Lincoln, 24 N.Y.2d 270 [1969]). ‘[A] noncustodial
parent should have reasonable rights of visitation, and . . . the denial of
those rights is so drastic it must be based upon substantial evidence that
visitation would be detrimental to the welfare of the child’ (Matter of Eric L. v Dorothy L., 130 A.D.2d 660, 660-661 [2d Dep’t
1987]; [***12]
see Matter of Hughes v Wiegman, 150 A.D.2d 449 [2d Dep’t 1989]; Janousek v Janousek, 108 A.D.2d 782, 784 [2d Dep’t
1985]). The wife's allegations here should not have resulted in
the suspension of the husband's visitation without a forensic evaluation
followed by a hearing addressing, inter alia, the
child's best interests (see Matter
of Bradley v Wright, 260 A.D.2d 477 [2d Dep’t 1999]; Pica v Pica, 96 A.D.2d 836, 837 [2d Dep’t 1983];
Kresnicka v Kresnicka, 48 A.D.2d 929 [2d Dep’t 1975]).”
Klutchko
v. Baron, 1 A.D.3d 400, 405 (2d
Petition for custody dismissed as
father did not promptly assert rights. Matter
of Kevin C., 1 A.D.3d 433 (2d
Issue preclusion; limited usefulness. Although the defendant's motion for a change
in custody contained similar allegations to those he raised in an earlier proceeding,
since the allegations in the motion were primarily based upon events and
circumstances occurring after the prior proceeding, the doctrines of res judicata and collateral estoppel are not applicable here. A parent seeking a change in custody is not
automatically entitled to a hearing, but here parent made sufficient showing to
obtain a hearing. Pander v. Pander,
1 A.D.3d 583 (2d
Interim relief. “The Family Court,
in chambers, conducted off-the-record ex parte
discussions with the cousin and grandmother by telephone, in the absence of
counsel, upon which it based its decision to award them temporary custody.
Thus, the Family Court's decision regarding temporary custody lacks a sound and
substantial basis in the record (see Matter of Millan v Vargas, 5 A.D.3d 602 [2d
“Stranger” who found abandoned
child had no standing to file for custody or intervene at the dispositional
phase of neglect proceeding. Matter
of Baby Doe, 4 Misc. 3d 693 (
Law Guardians -- private payment. “We note that the
practice of directing parents to pay a law guardian's fees in custody matters
appears to be more prevalent in the Supreme Court, where the court similarly
has the option of directing compensation from public funds pursuant to Judiciary Law § 35.
This court, as well as the Appellate Divisions, First and Third Departments,
have upheld the practice of requiring parties to pay law guardian fees in
custody proceedings initiated in the Supreme Court (see e.g. Rupp- Elmasri
v Elmasri, 8 A.D.3d 464 [2d Dep’t 2004]; Pascarelli v Pascarelli,
283 A.D.2d
472 [2d Dep’t 2001]; Stephens v Stephens, 249 A.D.2d 191 [1st
Dep’t 1998]; Gadomski v Gadomski, 245 A.D.2d 579 [3d
Dep’t 1997]; Bronstein v
Bronstein, 203
A.D.2d 703 [3d Dep’t 1994]). We perceive no basis for creating a
disparity between the Family Court and the Supreme Court in custody matters by
holding that only the Supreme Court is permitted to depart from the public
payment scheme for assigned law guardians. Indeed, we have previously held that
in [89/90] matters of custody, the Family Court has the same powers
possessed by the Supreme Court, which includes the authority to award counsel
fees (see Matter of O'Neil
v O'Neil, 193
A.D.2d 16 [2d Dep’t 1993]). Since the Supreme Court and the
Family Court share concurrent jurisdiction over custody proceedings, both
courts should have the ability to direct parents to pay law guardian fees in
appropriate circumstances.” Moreover, Family
Court had authority to order payment of Law Guardian fees in excess of statutory
rates. Plovnick v. Klinger, 10 A.D.3d 84, 89 (2d
Forensic evaluations -- request
for second evaluation denied. “There was
an insufficient showing made before the Family Court to justify a second
forensic examination of the parties and their children. The mother's contention
that the court- appointed [*277]
expert was biased is unsupported by the record. Further, the mother failed to
provide medical evidence [***2] that a second evaluation would not jeopardize the
best interests of the children (see Becker v Becker, 143 A.D.2d 561 [1st
Appellant was a loving parent, but
custody to the respondent was in the children’s best interests. Olson v. Olson, 8 A.D.3d 285 (2d
Trial: Weight of Law Guardian’s position.
Experts: Weight of forensic’s
recommendation.
In camera.
“Recommendations of persons such as the court-appointed psychologist and
law guardian are not determinative of the ultimate issue in controversy but are
factors to be considered, unless unsupported by the record (see Young v Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d
957).” Custody properly
awarded to respondent; Court did not err in failing to conduct in camera
interviews of children. Picot v. Barrett,
8 A.D.3d 288, 289 (2d
Court erred in returning children
to parent as children were at risk of imminent harm. (Child protective
proceeding.) Matter of Janih M., 8 A.D.3d 384 (2d
Jurisdiction -- Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA) -- inconvenient forum
questioned -- remand for hearing on jurisdiction. Rey v. Spinetta, 8 A.D.3d 393 (2d
Custody transferred to respondent
as appellant systematically acted to remove respondent from child’s life,
resulting in incarceration for willful contempt. Holden v. Cardozo, 8 A.D.3d 567 (2d
Custody transferred to respondent
as 12-year-old’s schoolwork suffered as appellant required the child to
supervise younger siblings after school and through the evening. A change of custody should be made only if
the totality of the circumstances warrants a modification of the existing
custody arrangement (here it did). Ortiz v. Maharaj, 8 A.D.3d 574 (2d
Custody properly transferred to
respondent as appellant had alienated the children from respondent. Bobinski
v. Bobinski, 9 A.D.3d 441 (2d
Trial. Appellant’s
behavior in courtroom supported award of sole custody to respondent. Caraballo
v.
Custody to
mother who is granted divorce on grounds of cruel and inhuman treatment. Reed v. Reed, -- A.D.3d -- (2d Dep’t
Custody transferred to petitioner
as respondent was in an abusive relationship.
K.D. v. J.D., 4 Misc. 3d 1010(A) (Fam.
Ct. Suffolk Co. 2004) (not to be officially reported).
Stepfather had standing to seek
custody against father as mother had been killed and child had resided with
stepfather since age 3. Matter of P.T. v. T.R.,
4 Misc. 3d 1022(A), (Fam Ct,
Custody awarded to petitioner as
child had experienced emotional and education difficulties while in the care of
the respondent and the respondent was not sufficiently supervising the child. Matter of Guy M. v. Yolanda L.F.,
5 Misc. 3d 1012(A), (Fam Ct,
Trial. Father’s visitation
petition properly dismissed without a hearing as appellant had no relationship
with the child, never met the child and did not seek visitation until child was
ten years old. Razo
v. Leyva, 3 A.D.3d 571 (2d
Experts. “[T]he Supreme
Court's reliance on the recommendation of a forensic evaluator was proper, as
the evaluator's testimony and reports were reflective of the extensive amount
of time and effort she expended with the parties and as well as in reviewing
prior reports. Her recommendation, as well as the remainder of the evidence
adduced at the full custody hearing, demonstrated that custody with the father
was in the child's best interests.” Nicholson v. Nicholson, 4 A.D.3d 347, 347 (2d
Trial -- severe mental illness
justifies suspension of visitation without a hearing, but not a prohibition
against filing new petitions. “Under the
circumstances of this case, the Family Court properly suspended the mother's
visitation rights without conducting an evidentiary hearing. The Family Court
possessed sufficient information, including the report of a neutral forensic
psychiatrist, to render an informed visitation determination consistent with
the best interests of the children. [citations omitted].
Furthermore, in light of the evidence concerning the severity of the
mother's mental illness, and the recommendation of the neutral psychiatrist who
evaluated her, the Family Court's determination to suspend visitation is in the
best interests of the children [citations omitted].”
“[371/72] However, we agree with the mother's
contention that it was improper for the Family Court to bar her from filing any
future applications for custody and visitation ‘without a prior showing that
she is compliant with therapy and the use of anti-psychotic medication.’ Although the court may, in appropriate circumstances, require
a party to obtain counseling and treatment as a component of a custody or
visitation order [citations omitted], it has no authority to compel a parent to
undergo therapy as a condition to any future application for custody or
visitation. Williams
v. O’Toole, 4 A.D.3d 371, 371-72 (2d
Parties’ agreement regarding
relocation was only one factor to be considered in determining best interests. Rheingold v. Rheingold, 4 A.D.3d 406
(2d
Effect of
subsequent divorce filing. Family Court not divested of jurisdiction by
subsequent commencement of Supreme Court action. Fallon v.
Fallon, 4 A.D.3d 426 (2d
Trial. No arbitration of
custody and visitation. Award of
custody by Jewish Rabbinical Court in arbitration was vacated as against public
policy. “Disputes concerning child
custody and visitation are not subject to arbitration as ‘the court's role as parens patriae must
not be usurped’ [citations omitted].” Hirsch
v. Hirsch, 4 A.D.3d 451, 452 (2d
Denial of
Visitation no supported by the evidence. Grisanti v. Grisanti, 4 A.D.3d 471 (2d Dep’t 2004)
Full faith and
credit.
Nonparent relative denied custody in favor of foster parent. Ella J. v. Iva J., 4 A.D.3d 527 (2d Dep’t 2004)
No evidence that law guardian is
prejudiced against defendant (in action for legal fees). Blangiardo
v. Blangiardo, 2 A.D.3d 381 (2d
Custody order upheld as respondent
was child’s primary caretaker. Cohen
v. Merems, 2 A.D.3d 663 (2d
Relocation of
custodial parent insufficient change in circumstances. Smoczkiewicz v. Smoczkiewicz,
2 A.D.3d 705 (2d
Aunt waived right to intervene by
waiting until foster parent filed for adoption.
Matter of David B., 2 A.D.3d 725 (2d
Visitation of four hours per month
upheld based on child’s lack of trust. Scalisi v. Scalisi,
2 A.D.3d 736 (2d
Visitation denied due to
conditions on release from prison. Zieran
v. Marvin, 2 A.D.3d 870 (2d
Petition for custody dismissed as
father did not promptly assert rights. Matter
of Kevin C., 1 A.D.3d 433 (2d
Modification of visitation order
properly dismissed for failure to make showing of material change in
circumstances. Heuthe
v. McLaren, 1 A.D.3d 514 (2d
Defendant met burden of offering
sufficient evidence to warrant a hearing to determine custody. Pander v. Pander, 1 A.D.3d 583 (2d
Trial. Assistance
of counsel.
Court erred in not re-assigning
new counsel since during the fact-finding, appellant was not able to challenge
court-appointed expert or cross-examine respondent effectively. St. Denis v.
St. Denis, 1 A.D.3d 369 (2d
Court erred in suspending all visitation without best interests hearing. Klutchko v. Baron,
1 A.D.3d 400 (2d
Paternal grandparents had standing
to seek visitation of grandchild born out of wedlock. Matter
of Rachel S., 1 Misc. 3d 760 (Fam. Ct. Kings Co.
2003)
Appellate
review.
Court’s denial of adjournment to appellant where attorney was injured
was an improvident exercise of discretion.
Appeal maintained notwithstanding rule against appeal from order entered
on default, because adjournment was contested and fundamental right (to
counsel) was involved. Vidal v. Mintzer, 309 A.D.2d 756 (2d
Relocation to
Respondent’s requested relief to
modify custody and place child in therapeutic school should not have been
granted without appointing a Law Guardian or holding a hearing:
“A forensic evaluator should be
chosen based on his or her ability to travel to
Trial. Order reversed as
grant of custody was made without conducting an evidentiary hearing. Pudalov v. Pudalov, 308 A.D.2d 524 (2d
Custody award proper as best
interest of the child was to be raised by the respondent and not a grandparent; appellant
responsible for “reasonable” health care expenses. Bains v.
Bains, 308 A.D.2d 557 (2d
Grandparent’s petition for custody
dismissed. Snypes v. Administration for
Children’s Services, 308 A.D.2d 593 (2d
Order reversed as grant of custody
was made without conducting evidentiary hearing. Pudalov. v. Pudalov, 308 A.D.3d
524 (2d
Sibling visitation issues referred
to court hearing adoption. Matter of Lovell Raeshawn
McC.,
308 A.D.3d 589 (2d
Visitation schedule with
incarcerated parent once every four months upheld.
Temporary
custody to father notwithstanding mother’s allegations of domestic violence. Award of temporary
custody pending psychological evaluations of both parents upheld. “In this case, despite the allegations made
by the mother that the father physically abused the child, the child has been
doing well in his care. Both the Law Guardian and court- appointed forensic
expert recommended that the father retain temporary custody of the child (see
Young v Young, 212 A.D.2d 114).
Moreover, the court-appointed forensic expert expressed
concern that the mother was coaching the child to falsely report being hit by
the father, and did not believe either parent was physically or sexually
abusing the child. Indeed, the forensic expert reported that the child
"has a penchant it seems for tall tales," and has admitted she may
not be telling the truth. The Supreme Court awarded the father temporary
custody pending, inter alia, psychiatric evaluations
of both parents. Under the circumstances of this case, the order of the Supreme
Court awarding temporary custody to the father was a provident exercise of
discretion. [citations omitted]” Mauter v. Mauter, 309 A.D.2d 737, 738
(2d Dep’t 2003)
Enrollment in anger management did
not warrant modification of visitation agreement requiring supervised overnight
visitation. Kane v. Rudansky, 309 A.D.2d 785 (2d
Trial. Custody order
reversed and case remanded for failure to consider allegations of domestic
violence. Samala v. Samala, 309 A.D.2d
798 (2d
Incarceration of parent was one
factor that visitation denied as not in child’s best interests. Rodriguez v. VanPutten,
309 A.D.2d 807 (2d
Relocation to
Visitation schedule upheld since
work schedule did not make it impossible to deliver child. Alston v. Curto,
309 A.D.2d 930 (2d
Award of custody supported by
finding that child thrived in the care of respondent and that appellant
repeatedly deprived respondent of visitation.
Dobbins v. Vartabedian, 304 A.D.2d 665
(2nd
Custody awarded to more stable
parent. Zayas
v. Barr, 304 A.D.2d 671 (2d
Visitation with
grandparents not in child’s best interests. Doolittle
v. Orange
Custody to mother in child’s best
interests based on father’s physical mistreatment and verbal abuse of
children. Rupp-Elmasri v. Elmasri, 305 A.D.2d
393 (2d
Jurisdiction and
forum non conveniens. Petition dismissed
for lack of jurisdiction as child lived abroad for six months prior to
commencement of proceeding. Randall v. Randall,
305 A.D.2d 512 (2d
Best interests warranted placing
child with father;
mother isolated children from father when they were in her
custody. Plaza v. Plaza, 305 A.D.2d
607 (2d
Order stating that visitation
would be “as directed by child’s treating physician” improperly divested power
from court. Rodriguez v. Rodriguez, 305 A.D.2d 608 (2d
Grandparents have standing to seek
visitation; matter remitted for best interests determination. Gavrusinas
v. Melnichenko, 305 A.D.2d 679 (2d
Grandparent failed to show
extraordinary circumstances. Janczuk v. Janczuk,
305 A.D.2d 680 (2d
Denial of visitation reversed for
failure to ascertain preference of 15 year old.
Preference of a 15-year-old is entitled to great weight. Kocowicz v.
Kocowicz, 306 A.D.2d 285 (2d
Supreme Court properly chose to
accept recommendation of one forensic expert when faced with conflicting
recommendations. Zafran
v. Zafran, 306 A.D.2d 468 (2d
Custody petition of great aunt,
filed after termination of parental rights, dismissed as recourse was to seek
adoption. Matter of Patience B.,
306 A.D.2d 473 (3d
Custody determination supported by
the record. Walton v. Walton, 306
A.D.2d 491 (2d
UCCJEA.
Supervised
visitation. Supervised visitation affirmed. Pope v. Pope, 783 N.Y.S.2d 870, 2004 NYSlipOp 08222 (2d Dep't
Detailed findings required,
particularly if hearing not held. A
hearing need not be held if the evidence before the court is sufficient to
enable it, even without a hearing, to reach a sound conclusion as to the best
interests of the child, but the court's determination must have a sound and
substantial basis in the record, and where the basis upon which the Family
Court concluded that the best interests of the child warranted an award of
custody to the father was not stated on the record, the appeals would be held
in abeyance and the matter remitted to the Family Court to state the basis
for awarding custody of the parties' child to the father. Bouie v. Arvelo-Smith,
784 N.Y.S.2d 894, 2004 NYSlipOp 08859 (2d Dep’t Nov.
29, 2004).
Right to
counsel. “The Family Court improperly proceeded
without considering the incarcerated father's written "motion for legal
representation," thereby impairing the father's ‘right to the assistance
of counsel.’ [citations
omitted]. The deprivation of a party's fundamental right to counsel in a
custody or visitation proceeding requires reversal, without regard to the
merits of the unrepresented party's position.
[citations omitted]. Knight
v.
Trial. Domestic
violence. Granting custody to
father was proper without a hearing where mother had permitted children to live
with abusive boyfriend. Assini v. Assini, -- A.D.3d --, 783 N.Y.S.2d 51, 2004
NYSlipOp 07125 (Oct. 4, 2004).
Custody award to mother
affirmed. Rory H. v. Mary M., 2004 NY Slip Op 09072 (
Father denied custody in
termination proceeding;
abandoned mother in pregnancy.
Baby Boy C. v. Douglas B.,
2004 NY Slip Op 09629 (
C. Third Department
Relocation to
Custody change
to mother denied, despite claims that father is too strict. “Respondent, proceeding pro se, testified at
a hearing before Family Court that he had a heated argument with the child
about his skipping school. He told the child that "if you don't like it
here, there's the door. Go use it"; the child left.
Respondent explained that he was angry at the time, did not mean for the child
to take the statement literally and that shortly after he left, respondent
asked him to return home. During the child's testimony, he expressed
dissatisfaction with respondent's rules, which required him to go to school, complete
homework and chores, feed the dog and introduce his friends to
respondent.”
Amendment of
pleadings. Family Court did not violate the
grandmother's right to proper notice when it permitted the father to amend his
visitation petition to include custody as well. Parties may amend or supplement
their pleadings at any time by leave of court, with such leave to be freely
given. In any event, the legal standard
for determining custody and visitation modifications is basically the
same. Mack v. Grizoffi, -- A.D.3d -- (3d Dep’t
Custody modification denied. Smoking issue discussed. Grayson
v. Fenton, -- A.D.3d -- (3d Dep’t
Neglect case: allegations include striking and threatening
the child ostensibly to intimidate her into providing favorable
evidence in the custody dispute. In re
Christine II, -- A.D.3d -- (3d Dep’t
Acrimony between parents and
grandparents may warrant terminating visitation in child’s best interests.
Polygraph testimony improper. In re
Lauren B., -- A.D.3d -- (3d Dep’t
Attorney for
parent disqualified for visiting home knowing adversary would be there, and
having confrontation. Carey
v. Carey, -- A.D.3d -- (3d Dep’t
Domestic
violence. “Although the mother was overprotective and
possibly projected her fears into the daughter's life, she was warm, caring,
involved and had been the child's primary caretaker throughout her life. On the
other hand, the father was controlling and seemed to have altered his parenting
to a great extent after the parties separated, in an effort to portray himself
as having always been intensely involved in raising the child.” Maliha v. Maliha, -- A.D.3d -- (3d Dep’t
Custodial access increased. Valentine v. Valentine, 3 A.D.3d 646 (3d Dep’t 2004)
Custody and
visitation to remain the same. Brown v. White, 3 A.D.3d 743 (3d
Respondent not coerced into
accepting agreement. McCartha
v. Williams, 3 A.D.3d 750 (3d
No change in circumstances to
modify custody but change in visitation necessary.
Respondent mother’s plea of guilty
to criminally negligent homicide constitutes sufficient change in circumstances
to warrant modification of custody. Gregio
v. Rifenburg,
3 A.D.3d 830 (3d
Father entitled to regular and
frequent visitation. Maziejka v. Fennelly, 3 A.D.3d 748 (3d Dep’t 2004)
Written order must conform
strictly to court’s decision, and when there is a conflict between the two, the
decision controls. Dates v. Mundt, 4 A.D.3d 639 (3d
NY has jurisdiction under UCCJEA.
Law Guardian appeals dismissal of
modification and family offense petitions.
Affirmed;
Appellate Division finds the record to fully support Family
Court’s characterization of the children's descriptions as
"embellished." Hitchcock v. Kilts, 4 A.D.3d 652, 654 (3d
Supreme Court’s misapprehension of
existing custody arrangement precluded best interests
analysis. Slater-Mau v. Mau, 4 A.D.3d
658 (3d
Continual deterioration of
relationship constitutes change in circumstances sufficient to justify
modification of custody. Smith v. Miller,
4 A.D.3d 697 (3d
Assaultive conduct warrants order of protection but hearing required
to determine visitation. Carter v. James,
4 A.D.3d 640 (3d
Neglect proceeding against mother
does not constitute sufficient change in circumstances to warrant unsupervised
visitation much less change in custody. Jason
DD. v. Mayann EE., 4 A.D.3d 687 (3d
Change of custody improper
sanction for contempt. Labanowski v. Labanowski,
4 A.D.3d 690 (3d
Change in custody based on number
of things mother did to alienate the father.
Whitley v. Leonard, 5 A.D.3d 825 (3d
Insufficient
change in circumstances to warrant modification of custody. Clarke v.
Clarke, 6 A.D.3d 757 (3d
Order finding respondent in
violation of visitation order reversed. Mosso v. Mosso, 6 A.D.3d 827 (3d
Law guardian appeals Family Court
dismissal of modification petition but Appellate Division upholds provision of
preventive services to respondent and child, as responsive to violation of
non-smoking order. Terry
v. Borggreen,
6 A.D.3d 1001 (3d
Although there was sufficient
evidence of change in circumstances, there was insufficient evidence on best
interests. Banks v. Hairston, 6 A.D.3d
886 (3d
Mother’s choice to leave area
where child had lived all his life was not in child’s best interests. Rutz v. Carinci, 6 A.D.3d 992 (3d
Following fact-finding hearing on
visitation, Family Court properly found that visitation with petitioner who was
incarcerated, would be harmful to the children.
Edward S. v. Moon, 7 A.D.3d 834 (3d
Mother sought modification of
terms of visitation father received in divorce, alleging child abuse. Krista I. v. Gregory I., 8 A.D.3d 696 (3d Dep’t 2004)
Right to
counsel. Failure to advise respondent of her right to
counsel in proceeding for modification of visitation is reversible error. “Family Ct Act § 262 (a)
provides that when parties contesting custody or visitation first appear,
Family Court must advise them of their right to be represented by counsel,
to have an adjournment to confer with counsel and to have counsel assigned by
the court if they are financially unable to retain counsel. . . .” Grayson v.
Fenton, 8 A.D.3d 696, 696 (3d
Family Court issues order of
protection against mother. Schermerhorn v. Breen,
8 A.D.3d 709 (3d
Supreme Court heavily relied on
testimony of psychologist regarding enmeshed relationship between mother and
son and the impact it would have on his future development. Grandin v. Grandin, 8 A.D.3d 710 (3d
Change of circumstances and best
interests of child warrant modification of visitation. Cole v. Reynolds, 8 A.D.3d 703 (3d
Sole custody to father based on
sexual abuse of child while at mother’s house, mother’s unwillingness to
acknowledge her boyfriend’s problems with violence and her inability to put the
needs of her children ahead of her own. Wood
v. Wood, 8 A.D.3d 767 (3d
(In camera segment). 15-yr.-old child’s wishes are not dispositive. Child
testified in open court. Cornell v. Cornell,
8 A.D.3d 718 (3d
Mother failed to demonstrate that
relocation to her native country of the
Mother’s move without father’s
permission warranted change in custody. Crippen
v. Keator, 9 A.D.3d 535 (3d
Substantial change in
circumstances justified modification of prior custody order.
Mother’s appeals from orders
granting father’s application to modify prior order of custody were rendered
moot by consent order which superseded the orders appealed. Carella v. Ferrara, 9 A.D.3d 605 (3d Dep’t 2004)
Discovery of
psychiatric records, etc. Family Court committed reversible error in
terminating father’s visitation rights in his absence, without assistance of
counsel and without a best interests hearing.
His failure to sign psychiatric releases did not warrant contempt
finding. “Under the particular
circumstances presented here, it was error for Family Court to resort to the
contempt statute when other remedies were available (see
Respondent, who was incarcerated
for trying to murder petitioner, sought to modify order of protection based on
“good behavior”. Family Court dismissed
the petition without a hearing finding the petitioner’s remedy was a timely
appeal.
Grandmother failed to establish
extraordinary circumstances sufficient to deprive father of custody; father filed to
take custody away from grandmother shortly after mother was murdered.
(Appeals). Fugitive
disentitlement doctrine. The
fugitive disentitlement doctrine permits a court to dismiss an appeal if the
party seeking relief is a fugitive while the matter is provided that there is a
nexus between the appellant's fugitive status and the appellate
proceedings. Joshua M. v. Dimari N., 9 A.D.3d 617 (3d
Appeals. Visitation; mootness.
“Where a party commences new proceedings
and specifically agrees to a new visitation schedule, appeals of prior orders
on the same issues are rendered moot [citations omitted]. The denial of
jailhouse visitation is also moot as the father apparently is no longer
incarcerated. Matter of Rebecca O. v.
Todd P., 309 A.D.2d 982, 983 (3d
Absent showing that less drastic
means of enforcement would be ineffectual, court lacks authority to hold
defendant in contempt. Kayemba v. Kayemba , 309 A.D.2d
1045 (3d
Continued deterioration in
relationship can be a significant change in circumstances justifying
modification of joint to sole custody. Matter of Rosario WW. v. Ellen WW., 309 A.D.3d 984 (3d
Deprivation of
custody inappropriate remedy to enforce visitation. Parkhurst
v. McFall, 1 A.D.3d 78 (3d
Role of Law
Guardian. Law Guardian reports disapproved. The Law Guardian is the attorney for the
child and not an investigative arm of the court. “Because it appears that Supreme Court
ordered and relied on a "report" from the Law Guardian, we take this
opportunity to emphasize that a law guardian is the attorney for the children
[citations omitted] and not an investigative arm of the court. While law
guardians, as advocates, may make their positions known to the court orally or
in writing (by way of, among other methods, briefs or summations), presenting
reports containing facts which are not part of the record or making submissions
directly to the court ex parte are inappropriate
[citations omitted]. Consequently, courts should not direct law guardians to
make such reports.” Weiglhofer
v. Weiglhofer, 1 A.D.3d 786, 788 fn. (3d
Grandmother showed extraordinary
circumstances warranting denial of custody to mother. McDevitt v.
Stimpson, 1 A.D.3d 811 (3d
Termination of
joint custody inappropriate. Lynch
v. Tambascio, 1 A.D.3d 816 (3d
Family Court must make threshold
finding of extraordinary circumstances before considering best interests. McArdle v. McArdle,
1 A.D.3d 822 (3d
Failure to allege, must less
demonstrate, change in circumstances warrants
dismissal of modification petition. Ritchie
v. Waters, 1 A.D.3d 839 (3d
Order continuing suspension of
visitation was proper. Stitzel v. Brown, 1 A.D.3d 826 (3d
Grandmother properly awarded
custody due to parent’s unfitness. Vann
v. Herson, 2 A.D.3d 910 (3d
(General
segment). Orders directed to non-parties (FCA
§255): Party can be ordered to undergo
substance abuse rehabilitation but nonparty County cannot be ordered to pay for
it. Remillard v. Luck, 2 A.D.3d
1179 (3d
No basis to disturb custody award. Morrow v. Morrow, 2 A.D.3d 1225 (3d
Deterioration in child’s dental
hygiene constitutes change in circumstances sufficient to modify custody. Munson v. Lippman,
2 A.D.3d 1252 (3d
Supervised
visitation. Limited supervised visitation appropriate. “Here, respondent violated the prior custody
order on numerous occasions, broke into petitioner's home and took an item,
disparaged and physically attacked petitioner in front of the child, and either
refused to attend co-parenting sessions or failed to interact civilly with
petitioner when she did attend. In addition to relying on the above factors,
Family Court also noted respondent's continued erratic behavior during trial,
which included reacting to adverse testimony by plugging her ears and
closing her eyes. Given this evidence and despite the Law Guardian's
recommendation that respondent be permitted unsupervised visitation, we find no
basis to disturb Family Court's conclusion that limiting respondent to
supervised visitation was in the child's best interest [citations
omitted].” Custer v. Slater, 2 A.D.3d
1227, 1228 (3d
D. Fourth Department
Custody order affirmed without
opinion. Koehn v. Koehn, -- A.D.3d -- (4th Dep’t
Relocation denied. “Although the recommendation of the Law
Guardian is important, it is not determinative (see Matter of Perry v Perry, 194 A.D.2d 837, 838).” Wright
v. Derrick, -- A.D.3d -- (4th Dep’t
Custody to
grandparent. Appellate Division makes the extraordinary
circumstances finding which Family Court failed to make. Amanda
B. v. Anthony B., -- A.D.3d -- (4th Dep’t
Court improperly directed Law
Guardian ex parte “report” and testimony. Cobb v. Cobb, 4 A.D.2d 747 (4th
Rejection of relocation request
affirmed. Chancer
v. Stowell, 5 A.D.3d 1082 (4th
Experts. Psychological
evaluation not required, where neither the parties nor the Law Guardian
requested such an evaluation, and there was nothing in the record to indicate
that the child displayed emotional problems which would make the assistance of
psychological experts necessary. Mathieu
v. Grosser, 5 A.D.3d 1069 (4th
Error to grant
temporary supervised visitation summarily over Law Guardian’s objection. Matter of Karen
A.O., 6 A.D.3d 1100 (4th
Joint custody affirmed. Schlafer v.
Schlafter, 6 A.D.3d 1202 (4th
Law Guardians -- conflict of
interest. No error in assignment of
former Law Guardian of another child of respondent as petitioner’s counsel. Fralix v.
Thornock, 8 A.D.3d 890 (4th
Referee’s conditional custodial
award affirmed (conditioned on father’s moving into a
certain school district). Mc Tighe v. Pearl, 8 A.D.3d 951 (4th
Appellate Division finds
extraordinary circumstances and remits for “best interests.” Rodrigues
v. Albino, 8 A.D.3d 1031 (4th
Error to dismiss
petition seeking permission to relocate at close of petitioner’s case. Stone v. Wyant,
8 A.D.3d 1046 (4th
Appellate Division makes findings
and affirms. Vezina
v. Vezina, 8 A.D.3d 1047 (4th
Petitions for violation of prior
order and modification properly dismissed summarily. Schwitzer
v. Plank, 8 A.D.3d 1077 (4th
Petitioner’s unacknowledged and
untreated mental health problems support custody to respondent. Booth
v. Booth, 8 A.D.3d 1104 (4th
Reversible error
to refuse to allow testimony regarding third party’s treatment of child. Family Court abused
its discretion in refusing to allow petitioner to present the testimony of two
witnesses who allegedly viewed mistreatment of the child and in denying the
request of the Law Guardian to call respondent as a witness. Henry v. Caye,
9 A.D.3d 878 (4th
Dismissal of
petition to terminate grandparent’s visitation proper. Wojcik
v.
Parent of deceased parent has
standing to seek visitation. O’Neill v.
Nunziato, 11 A.D.3d 1023 (4th
Award of custody to paternal aunt
affirmed. Miller v. Michalski, 11 A.D.3d 1029 (4th
Family Court must articulate basis
for sanctions award. Wallace B.O. v. Christine
R.S.-O., -- A.D.3d
--, 784 NYS2d 437 (4th
Case held and matter remitted for
Family Court findings. Russell v. Banfield, A.D.3d , 784 NYS2d 446 (4th
Award of custody to child’s
great-aunt affirmed. Eleanore B.R. v. Shandy
S., -- A.D.3d --, 784 NYS2d 807 (4th
Mother’s abuse or neglect of child
and relationships involving domestic violence support change in custody to
father. Stacey L.B. v. Kimberly R.L.,
-- A.D.3d --, 785 NYS2d 238 (4th
Great-aunt has standing to petition
for custody of child in foster care. Veronica G. v.
Petitioner established standing
but Court erred in summarily granting custody.
Amy H. v.
Court erred in dismissing petition
and granting cross-petition without a hearing.
Matter of Elliott v. Major, 1 A.D.3d 940 (4th
South Carolina Court had jurisdiction
under UCCJA. Hansen v. Bergin, 1 A.D.3d
968 (4th
Petitioner met his burden of
demonstrating a change in circumstances.
Maher v. Maher, 1 A.D.3d 987 (4th
Court erred in stating in order
that children should not be forced to visit with petitioner. Casolari v.
Zambuto, 1 A.D.3d 1031 (4th
Custody properly modified. Williams v. Tucker, 2 A.D.3d 1366 (4th
Contempt order modified. Stuttard v.
Stuttard, 2 A.D.3d 1415 (4th
Motion to dismiss properly granted
without hearing; no
sufficient showing of change of circumstances.
Di Fiore v. Scott, 2 A.D.3d
1417 (4th
Error to dismiss grandparent’s
petition based on pendency of divorce action. Follum v.
Follum, 302 A.D.2d 861 (4th
No error in summarily denying
petition for permission to relocate. Zito v. Pfohl, 302 A.D.2d 918 (4th
Denial of petition to relocate to
Family Court could evaluate
evidence of respondent’s lapses in judgment.
De Felice v. De Felice,
303 A.D.2d 1017 (4th
Custody to Grandmother reversed:
No extraordinary circumstances. Blasdell v. De Golier,
303 A.D.2d 1045 (4th
Recusal of Judge and disqualification of Law Guardian not required. Herald v. Herald, 305 A.D.2d 1080
(4th
Transfer of custody affirmed. Pinkerton v. Pensyl,
305 A.D.2d 1113 (4th
No error in denial of respondent’s
request for in camera . Hill v. La Paglia,
306 A.D.2d 909 (4th
Inability to
communicate but no change in circumstance. Marcantonio
v. Marcantonio, 307 A.D.2d 740 (4th
Experts. Child’s
communication with therapist properly admitted.
Court must state basis for award
of counsel and Law Guardian fees. Leisten v. Leisten,
309 A.D.2d 1202 (4th
Change in circumstances, but
denial of modification affirmed. Steele
v. Rose, 309 A.D.2d 1242 (4th
Trial. Minimal reliance on
hearsay statement in Law Guardian’s summation held harmless; psychological evaluation not required.
Effect of Domestic Violence
on Custody Determinations:
A. Domestic Relations Law:
Under
Domestic Relations Law § 240, if allegations of domestic violence are proven by
a preponderance of the evidence, the court must consider the effect of such
domestic violence upon the best interests of the child.
B. Case Law:
- Booth v. Booth, 8 A.D.3d 1104
(4th
-.
K.D. v. J.D., 4 Misc. 3d 1010(A), 2004 WL 1753417, 2004 NY Slip
Op. 50814(U) (Fam Ct, New York County 2004): In this case, the domestic violence occurring
in mother's home and its impact on the children was the most significant factor
the court considered in transferring custody from the mother to the
father. The mother’s relationship with
her boyfriend had been marked with instances of abuse, which the children had
witnessed. The children remained in fear
due to these instances. It was in the
children’s best interests for their father to have custody, as the mother had
not removed the boyfriend from her life.
The court remarked this fact was “tragic” as the mother was the more
capable parent in all other respects.
Temporary
custody to father notwithstanding mother’s allegations of domestic violence. Award of temporary
custody pending psychological evaluations of both parents upheld. “In this case, despite the allegations made
by the mother that the father physically abused the child, the child has been
doing well in his care. Both the Law Guardian and court- appointed forensic
expert recommended that the father retain temporary custody of the child (see
Young v Young, 212 A.D.2d 114).
Moreover, the court-appointed forensic expert expressed
concern that the mother was coaching the child to falsely report being hit by
the father, and did not believe either parent was physically or sexually
abusing the child. Indeed, the forensic expert reported that the child
"has a penchant it seems for tall tales," and has admitted she may
not be telling the truth. The Supreme Court awarded the father temporary
custody pending, inter alia, psychiatric evaluations
of both parents. Under the circumstances of this case, the order of the Supreme
Court awarding temporary custody to the father was a provident exercise of
discretion. [citations omitted]” Mauter v. Mauter, 309 A.D.2d 737, 738
(2d Dep’t 2003)
Enrollment in anger management did
not warrant modification of visitation agreement requiring supervised overnight
visitation. Kane v. Rudansky, 309 A.D.2d 785 (2d
Custody order reversed and case
remanded for failure to consider allegations of domestic violence. Samala v. Samala, 309
A.D.2d 798 (2d
Custody to
mother who is granted divorce on grounds of cruel and inhuman treatment. Reed v. Reed, -- A.D.3d -- (2d Dep’t
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