CUSTODY AND VISITATION CASELAW (2003-2004)

 

by

 

Betsy R. Ruslander, Esq. and George E. Reed, Jr., Esq.

 

 

 

††††††††††† A.First Department

 

Petitionerís interference with respondentís 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 ďrecommendation.ĒMatter of Tyrone G., 4 A.D.3d 205 (1st Depít 2004)

 

Exceptional circumstances due to inadequate guardianship justified award to grandparents (ACS involved).†† Matter of Joseph S., 3 A.D.3d 446 (1st Depít 2004)

 

Criminal history of respondentís boyfriend and respondentís interference with petitionerís visitation justifies award of custody to petitioner.†† Matter of Raymond G., 3 A.D.3d 461 (1st Depít 2004)

 

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. Ct. Bronx Co. 2003)

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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 plaintiffís authority as sole custodian.†† Lewittes v. Lewittes, 2 A.D.3d 295 (1st Depít 2003)

 

Grandparent awarded custody over parent;parent had had limited involvement for several years.Michelle V. v. Lillian P., 1 A.D.3d 272 (1st Depít 2003)

 

Interference;appellate review.Motherís 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 Depít 1995], lv. denied 86 N.Y.2d 706 [1995]). Here, the record supports the determination of the court, which was uniquely well-situated to evaluate the credibility of the witnesses (see Matter of Brittni K., 297 A.D.2d 236, 237-238 [1st Depít 2002]), that the best interests of the children would be served by an award of custody to the father (see Walden v. Walden, 112 A.D.2d 1035 [2d Depít 1985]).ĒMatter of Mendez, 1 A.D.3d 265, 265 (1st Depít 2003)

 

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 Depít 2003)

 

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 Depít 2003)

 

Trial -- effect of agreement.ďAlthough 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]).ĒParty seeking modification of agreement must establish that it is in childís best interests.†† Steck v. Steck, 307 A.D.2d 819, 820 (1st Depít 2003)

 

Childís preference is not dispositive.Martin V. v. Karen Beth G., 305 A.D.2d 305 (1st Depít 2003)

 

Parental failure to cooperate with visitation warrants loss of custody. Matter of Nathan J.H., 305 A.D.2d 293 (1st Depít 2003)

 

Custody changed where mother did not interact or communicate with the child.Matter of Felipe B., 304 A.D.2d 324 (1st Depít 2003)

 

††††††††††† B.Second Department

 

 

Custody to father, who has stable home;mother moves a lot.Cornell C. v. Cynthia H., -- A.D.3d -- (1st Depít Dec. 14, 2004).

 

 

Grandparent visitation petition dismissed;child lives in Pennsylvania.ďThe grandparents are not left without a remedy, as Pennsylvania has a relevant grandparent visitation statute which may arguably be more liberal than its New York counterpart (see 23 Pa C S ß 5311).ĒGiovinazzo v. Giovinazzo, -- A.D.3d -- (2d Depít Dec. 27, 2004).

 

Order directing return to New York modified as completing school at current school was in childís best interest.Adlerstein v. Adlerstein, 5 A.D.3d 616 (2d Depít 2004)

 

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 Depít 2004)

 

Appellant not denied right to counsel.Fuentes v. Fuentes, 5 A.D.3d 484 (2d Depít 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 Depít 2004)

 

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 Depít 2004)

 

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 Depít 2004)

 

Grandparent denied custody as foster parents were only parents the child had ever known.James v. Hickey, 6 A.D.3d 536 (2d Depít 2004)

 

Change in custody denied as not in best interest.Crespo v. Figueroa, 6 A.D.3d 612 (2d Depít 2004)

 

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 Depít 2004)

 

Custody decision had sound and substantial basis in the record.†† Skratt v. Henry, 6 A.D.3d 719 (2d Depít 2004)

 

Custody award to respondent proper as appellant was hostile and interfered with respondentís visitation.Mother filed petty or baseless violation petitions.Greene v. Gordon, 7 A.D.3d 528 (2d Depít 2004)

 

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 Depít 2004)

 

Custody properly awarded to respondent as appellant had attempted to exclude children from respondentís life.Jarushewsky v. Baez, 7 A.D.3d 713 (2d Depít 2004)

 

Custody transferred to respondent as petitionerís relocation not in childrenís best interests.Jones v. Jones, 4 Misc. 3d 1004(A),(Fam. Ct. Nassau County, 2004)

 

Petitioner granted custody as respondent frustrated petitionerís visitation with child.Perez v. Sepulveda, 4 Misc. 3d 1005(A), (Fam. Ct. Queens County, 2004)

 

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. ďThe 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]). Ď[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 childí (Matter of Eric L. v Dorothy L., 130 A.D.2d 660, 660-661 [2d Depít 1987][***12]  see Matter of Hughes v Wiegman, 150 A.D.2d 449 [2d Depít 1989]; Janousek v Janousek, 108 A.D.2d 782, 784 [2d Depít 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 Depít 1999]; Pica v Pica, 96 A.D.2d 836, 837 [2d Depít 1983]; Kresnicka v Kresnicka, 48 A.D.2d 929 [2d Depít 1975]).Ē ††Klutchko v. Baron, 1 A.D.3d 400, 405 (2d Depít 2003)

Petition for custody dismissed as father did not promptly assert rights.Matter of Kevin C., 1 A.D.3d 433 (2d Depít 2003)

 

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 Depít 2003)

 

Interim relief.ďThe 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 Depít 2004]; Kuncman v Kuncman, 188 A.D.2d 517, 518 [2d Depít 1992])Court erred in permitting childís cousin and grandmother to have custody during pending abuse proceeding.†† Matter of Toni G., 8 A.D.3d 379, 380 (2d Depít 2004)

 

ďStrangerĒ 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 (Fam Ct, Kings County ,2004)

 

Law Guardians -- private payment.ďWe 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 ß 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 Depít 2004]; Pascarelli v Pascarelli, 283 A.D.2d 472 [2d Depít 2001]; Stephens v Stephens, 249 A.D.2d 191 [1st Depít 1998];  Gadomski v Gadomski, 245 A.D.2d 579 [3d Depít 1997]; Bronstein v Bronstein, 203 A.D.2d 703 [3d Depít 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 Depít 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.ĒMoreover, 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 Depít 2004) .

 

Forensic evaluations -- request for second evaluation denied.ďThere 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 Depít 1988]).Ē†† Friedman v. Friedman, 8 A.D.3d 276 (2d Depít 2004)

 

Appellant was a loving parent, but custody to the respondent was in the childrenís best interests.Olson v. Olson, 8 A.D.3d 285 (2d Depít 2004)

 

Trial:Weight of Law Guardianís position.

Experts:Weight of forensicís recommendation.

In camera.

 

ďRecommendations 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 Depít 2004)

 

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 Depít 2004)

 

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 Depít 2004)

 

Custody transferred to respondent as appellant systematically acted to remove respondent from childís life, resulting in incarceration for willful contempt.††††††† Holden v. Cardozo, 8 A.D.3d 567 (2d Depít 2004)

 

Custody transferred to respondent as 12-year-oldís 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 Depít 2004)

 

Custody properly transferred to respondent as appellant had alienated the children from respondent.†† Bobinski v. Bobinski, 9 A.D.3d 441 (2d Depít 2004)

 

Trial.Appellantís behavior in courtroom supported award of sole custody to respondent.Caraballo v. Colon, 9 A.D.3d 459 (2d Depít 2004)

 

Custody to mother who is granted divorce on grounds of cruel and inhuman treatment.Reed v. Reed, -- A.D.3d -- (2d Depít Dec. 27, 2004).

 

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 ofP.T. v. T.R., 4 Misc. 3d 1022(A), (Fam Ct, Orange County, 2004) (not to be officially reported).

 

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, Orange County, 2004) (not to be officially reported).

 

Trial.Fatherís 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 Depít 2004)

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Experts.ď[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.ĒNicholson v. Nicholson, 4 A.D.3d 347, 347 (2d Depít 2004)

 

Trial -- severe mental illness justifies suspension of visitation without a hearing, but not a prohibition against filing new petitions.ďUnder 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].Ē

ď[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 Ďwithout a prior showing that she is compliant with therapy and the use of anti-psychotic medication.í 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. OíToole, 4 A.D.3d 371, 371-72 (2d Depít 2004).

 

Partiesí agreement regarding relocation was only one factor to be considered in determining best interests.†† Rheingold v. Rheingold, 4 A.D.3d 406 (2d Depít 2004)

 

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 Depít 2004)

 

Trial.No arbitration of custody and visitation.†† Award of custody by Jewish Rabbinical Court in arbitration was vacated as against public policy.ďDisputes concerning child custody and visitation are not subject to arbitration as Ďthe court's role as parens patriae must not be usurpedí [citations omitted].ĒHirsch v. Hirsch, 4 A.D.3d 451, 452 (2d Depít 2004)

 

Denial of Visitation no supported by the evidence.†† ††††† Grisanti v. Grisanti, 4 A.D.3d 471 (2d Depít 2004)

 

Full faith and credit.Arkansas divorce decree granting custody to respondent upheld. People ex rel. Cesario v. Cesario, 4 A.D.3d 493 (2d Depít 2004)

 

Nonparent relative denied custody in favor of foster parent.Ella J. v. Iva J., 4 A.D.3d 527 (2d Depít 2004)

 

No evidence that law guardian is prejudiced against defendant (in action for legal fees).†† Blangiardo v. Blangiardo, 2 A.D.3d 381 (2d Depít 2003)

 

Custody order upheld as respondent was childís primary caretaker.†† Cohen v. Merems, 2 A.D.3d 663 (2d Depít 2003)

 

Relocation of custodial parent insufficient change in circumstances.†† Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705 (2d Depít 2003)

 

Aunt waived right to intervene by waiting until foster parent filed for adoption.Matter of David B., 2 A.D.3d 725 (2d Depít 2003)

 

Visitation of four hours per month upheld based on childís lack of trust.Scalisi v. Scalisi, 2 A.D.3d 736 (2d Depít 2003)

 

Visitation denied due to conditions on release from prison.†††††† Zieran v. Marvin, 2 A.D.3d 870 (2d Depít 2003)

 

Petition for custody dismissed as father did not promptly assert rights.Matter of Kevin C., 1 A.D.3d 433 (2d Depít 2003)

 

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 Depít 2003)


Defendant met burden of offering sufficient evidence to warrant a hearing to determine custody.Pander v. Pander, 1 A.D.3d 583 (2d Depít 2003)

 

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 Depít 2003)

 

Court erred in suspending all visitation without best interests hearing.†† Klutchko v. Baron, 1 A.D.3d 400 (2d Depít 2003)

 

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.Courtís 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 Depít 2003)

 

Relocation to Florida properly denied as not in childrenís best interest.Confort v. Nicolai, 309 A.D.2d 861 (2d Depít 2003)

 

Respondentís 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:

ďA forensic evaluator should be chosen based on his or her ability to travel to California to examine the child at the CEDU program [an educational program in California]; alternatively, the court may appoint a forensic evaluator from California. A Law Guardian should be chosen who is willing to travel to interview the child at CEDU. The Supreme Court should also explore the feasibility of conducting the forensic examination and the interview of the child by teleconference. At oral argument of this appeal the wife offered to pay the cost of travel to California by the forensic evaluator and Law Guardian and the cost of returning the child to New York for the hearing. If such travel is deemed necessary by the Supreme Court, it should make an order directing the wife to pay therefor†† Lisa X. v. George Y., 308 A.D.2d 488, 491 (2d Depít 2003)

 

Trial.Order reversed as grant of custody was made without conducting an evidentiary hearing.Pudalov v. Pudalov, 308 A.D.2d 524 (2d Depít 2003)

 

Custody award proper as best interest of the child was to be raised by the respondent and not a grandparent; appellant responsible for ďreasonableĒ health care expenses.†† Bains v. Bains, 308 A.D.2d 557 (2d Depít 2003)

 

Grandparentís petition for custody dismissed.Snypes v. Administration for Childrenís Services, 308 A.D.2d 593 (2d Depít 2003) (child freed for adoption).

 

Order reversed as grant of custody was made without conducting evidentiary hearing.Pudalov. v. Pudalov, 308 A.D.3d 524 (2d Depít 2003)

 

Sibling visitation issues referred to court hearing adoption.††††††† Matter of Lovell Raeshawn McC., 308 A.D.3d 589 (2d Depít 2003)

 

Visitation schedule with incarcerated parent once every four months upheld.Watts v. Leonard, 308 A.D.2d 593 (2d Depít 2003)

 

Temporary custody to father notwithstanding motherís allegations of domestic violence.Award of temporary custody pending psychological evaluations of both parents upheld.ďIn 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]ĒMauter v. Mauter, 309 A.D.2d 737, 738 (2d Depít 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 Depít 2003)

 

Trial.Custody order reversed and case remanded for failure to consider allegations of domestic violence.Samala v. Samala, 309 A.D.2d 798 (2d Depít 2003)

 

Incarceration of parent was one factor that visitation denied as not in childís best interests.Rodriguez v. VanPutten, 309 A.D.2d 807 (2d Depít 2003)

 

Relocation to Florida denied.Confort v. Nicolai, 309 A.D.2d 861 (2d Depít 2003)

 

Visitation schedule upheld since work schedule did not make it impossible to deliver child.Alston v. Curto, 309 A.D.2d 930 (2d Depít 2003)

 

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 Depít 2003)

 

Custody awarded to more stable parent.Zayas v. Barr, 304 A.D.2d 671 (2d Depít 2003)

 

Visitation with grandparents not in childís best interests.†† Doolittle v. Orange County DSS, 304 A.D.2d 828 (2d Depít 2003)

 

Custody to mother in childís best interests based on fatherís physical mistreatment and verbal abuse of children.†† Rupp-Elmasri v. Elmasri, 305 A.D.2d 393 (2d Depít 2003)

 

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 Depít 2003)

 

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 Depít 2003)

 

Order stating that visitation would be ďas directed by childís treating physicianĒ improperly divested power from court.††††††††††† Rodriguez v. Rodriguez, 305 A.D.2d 608 (2d Depít 2003)

 

Grandparents have standing to seek visitation; matter remitted for best interests determination.Gavrusinas v. Melnichenko, 305 A.D.2d 679 (2d Depít 2003)

 

Grandparent failed to show extraordinary circumstances.Janczuk v. Janczuk, 305 A.D.2d 680 (2d Depít 2003)

 

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 Depít 2003)

 

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 Depít 2003)

 

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 Depít 2003)

 

Custody determination supported by the record.Walton v. Walton, 306 A.D.2d 491 (2d Depít 2003)

 

UCCJEA.New York is home state.†† Campbell v. Campbell, 785 N.Y.S.2d 510 (2d Dep't Nov. 29, 2004).

 

Supervised visitation.Supervised visitation affirmed.†† Pope v. Pope, 783 N.Y.S.2d 870, 2004 NYSlipOp 08222(2d Dep't Nov. 15, 2004).

 

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 Depít Nov. 29, 2004).

 

Right to counsel.ďThe Family Court improperly proceeded without considering the incarcerated father's written "motion for legal representation," thereby impairing the father's Ďright to the assistance of counsel.í[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. Griffith, 2004 NY Slip Op 09292 (Dec. 13, 2004).

 

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 (Dec. 6, 2004).

 

Father denied custody in termination proceeding;abandoned mother in pregnancy.Baby Boy C. v. Douglas B., 2004 NY Slip Op 09629 (Dec. 27, 2004).

 

 

††††††††††† C.Third Department

 

 

Relocation to Mississippi denied.Paul v. Pagnillo, -- A.D.3d -- (3d Depít Dec. 23, 2004).

 

 

Custody change to mother denied, despite claims that father is too strict.ďRespondent, 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.ĒMoore v. Barrett, -- A.D.3d -- (3d Depít Dec. 23, 2004).

 

 

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 Depít Dec. 23, 2004).

 

Custody modification denied.Smoking issue discussed.Grayson v. Fenton, -- A.D.3d -- (3d Depít Dec. 23, 2004).

 

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 Depít Dec. 23, 2004).

 

Acrimony between parents and grandparents may warrant terminating visitation in childís best interests.†† Wilson v. McGlinchey, 2 N.Y.3d 375 (2004)

Polygraph testimony improper.In re Lauren B., -- A.D.3d -- (3d Depít Dec. 30, 2004).

 

Attorney for parent disqualified for visiting home knowing adversary would be there, and having confrontation.Carey v. Carey, -- A.D.3d -- (3d Depít Dec. 30, 2004).

 

Domestic violence.ďAlthough 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.ĒMaliha v. Maliha, -- A.D.3d -- (3d Depít Dec. 30, 2004).

 

 

Custodial access increased.Valentine v. Valentine, 3 A.D.3d 646 (3d Depít 2004)

 

Custody and visitation to remain the same.Brown v. White, 3 A.D.3d 743 (3d Depít 2004)

 

Respondent not coerced into accepting agreement.††††† McCartha v. Williams, 3 A.D.3d 750 (3d Depít 2004)

 

No change in circumstances to modify custody but change in visitation necessary.Peabody v. Peabody, 3 A.D.3d 804 (3d Depít 2004)

 

Respondent motherís 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 Depít 2004)

 

Father entitled to regular and frequent visitation.Maziejka v. Fennelly, 3 A.D.3d 748 (3d Depít 2004)

 

Written order must conform strictly to courtís decision, and when there is a conflict between the two, the decision controls.Dates v. Mundt, 4 A.D.3d 639 (3d Depít 2004)

 

NY has jurisdiction under UCCJEA.Arnold v. Harari, 4 A.D.3d 644 (3d Depít 2004)

 

Law Guardian appeals dismissal of modification and family offense petitions.Affirmed;Appellate Division finds the record to fully support Family Courtís characterization of the children's descriptions as "embellished."Hitchcock v. Kilts, 4 A.D.3d 652, 654 (3d Depít 2004).

 

Supreme Courtís misapprehension of existing custody arrangement precluded best interests analysis.Slater-Mau v. Mau, 4 A.D.3d 658 (3d Depít 2004)

 

Continual deterioration of relationship constitutes change in circumstances sufficient to justify modification of custody.Smith v. Miller, 4 A.D.3d 697 (3d Depít 2004)

 

Assaultive conduct warrants order of protection but hearing required to determine visitation.†† Carter v. James, 4 A.D.3d 640 (3d Depít 2004)

 

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 Depít 2004)

 

Change of custody improper sanction for contempt.Labanowski v. Labanowski, 4 A.D.3d 690 (3d Depít 2004)

 

Change in custody based on number of things mother did to alienate the father.Whitley v. Leonard, 5 A.D.3d 825 (3d Depít 2004)

 

Insufficient change in circumstances to warrant modification of custody.††††††††††† Clarke v. Clarke, 6 A.D.3d 757 (3d Depít 2004)

 

Order finding respondent in violation of visitation order reversed.†††††††† Mosso v. Mosso, 6 A.D.3d 827 (3d Depít 2004)

 

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 Depít 2004)

 

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 Depít 2004)

 

Motherís choice to leave area where child had lived all his life was not in childís best interests.Rutz v. Carinci, 6 A.D.3d 992 (3d Depít 2004)

 

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 Depít 2004)

 

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 Depít 2004)

 

Right to counsel.Failure to advise respondent of her right to counsel in proceeding for modification of visitation is reversible error. ďFamily Ct Act ß 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. . . .ĒGrayson v. Fenton, 8 A.D.3d 696, 696 (3d Depít 2004)

 

Family Court issues order of protection against mother.Schermerhorn v. Breen, 8 A.D.3d 709 (3d Depít 2004)

 

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 Depít 2004)

 

Change of circumstances and best interests of child warrant modification of visitation.Cole v. Reynolds, 8 A.D.3d 703 (3d Depít 2004)

 

Sole custody to father based on sexual abuse of child while at motherís house, motherís unwillingness to acknowledge her boyfriendís 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 Depít 2004)

 

(In camera segment).15-yr.-old childís wishes are not dispositive.Child testified in open court.Cornell v. Cornell, 8 A.D.3d 718 (3d Depít 2004)

 

Mother failed to demonstrate that relocation to her native country of the Czech Republic was in the childrenís best interests.Herman v. Villafane, 9 A.D.3d 525 (3d Depít 2004)

 

Motherís move without fatherís permission warranted change in custody.†††††††† Crippen v. Keator, 9 A.D.3d 535 (3d Depít 2004)

 

Substantial change in circumstances justified modification of prior custody order. Adams v. Franklin, 9 A.D.3d 544 (3d Depít 2004)

 

Motherís appeals from orders granting fatherís 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 Depít 2004)

 

Discovery of psychiatric records, etc.Family Court committed reversible error in terminating fatherís 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.ďUnder the particular circumstances presented here, it was error for Family Court to resort to the contempt statute when other remedies were available (see Family Ct Act ß 156; Matter of Murray, 98 A.D.2d 93, 97 [1st Depít 1983]). Family Court could have, among other things, authorized a deposition of the psychiatrist (see CPLR art 31; Family Ct Act ß 165), permitted the Law Guardian to subpoena the medical records for review and/or the psychiatrist for testimony at trial (see CPLR art 23), or ordered a full psychiatric evaluation (see Family Ct Act ß 251 [a]).ĒFrierson v. Goldston, 9 A.D.3d 612, 615 (3d Depít 2004).

 

Respondent, who was incarcerated for trying to murder petitioner, sought to modify order of protection based on ďgood behaviorĒ.Family Court dismissed the petition without a hearing finding the petitionerís remedy was a timely appeal.Anderson v. Anderson, 9 A.D.3d 619 (3d Depít 2004)

 

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.††† Campbell v. Brewster, 9 A.D.3d 620 (3d Depít 2004)

 

(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 Depít 2004)

 

Appeals.Visitation;mootness. ďWhere 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 Depít 2003)

 

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 Depít 2003)

 

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 Depít 2003)

 

Deprivation of custody inappropriate remedy to enforce visitation.Parkhurst v. McFall, 1 A.D.3d 78 (3d Depít 2003)

 

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.ďBecause 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.Ē†† Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788 fn. (3d Depít 2003)

 

Grandmother showed extraordinary circumstances warranting denial of custody to mother.McDevitt v. Stimpson, 1 A.D.3d 811 (3d Depít 2003)

 

Termination of joint custody inappropriate.††††† Lynch v. Tambascio, 1 A.D.3d 816 (3d Depít 2003)

 

Family Court must make threshold finding of extraordinary circumstances before considering best interests.††††† McArdle v. McArdle, 1 A.D.3d 822 (3d Depít 2003)

 

Failure to allege, must less demonstrate, change in circumstances warrants dismissal of modification petition.Ritchie v. Waters, 1 A.D.3d 839 (3d Depít 2003)

 

Order continuing suspension of visitation was proper.Stitzel v. Brown, 1 A.D.3d 826 (3d Depít 2003)

 

Grandmother properly awarded custody due to parentís unfitness.Vann v. Herson, 2 A.D.3d 910 (3d Depít 2003)

 

(General segment).Orders directed to non-parties (FCA ß255):†† 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 Depít 2003).

 

No basis to disturb custody award.Morrow v. Morrow, 2 A.D.3d 1225 (3d Depít 2003)

 

Deterioration in childís dental hygiene constitutes change in circumstances sufficient to modify custody.Munson v. Lippman, 2 A.D.3d 1252 (3d Depít 2003)

 

Supervised visitation.Limited supervised visitation appropriate.ďHere, 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].ĒCuster v. Slater, 2 A.D.3d 1227, 1228 (3d Depít 2003)


††††††††††† D.Fourth Department

 

 

 

Custody order affirmed without opinion.Koehn v. Koehn, -- A.D.3d -- (4th Depít Dec. 30, 2004).

 

Relocation denied.ďAlthough the recommendation of the Law Guardian is important, it is not determinative (see Matter of Perry v Perry, 194 A.D.2d 837, 838).ĒWright v. Derrick, -- A.D.3d -- (4th Depít Dec. 30, 2004).

 

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 Depít Dec. 30, 2004).

 

 

Court improperly directed Law Guardian ex parte ďreportĒ and testimony.Cobb v. Cobb, 4 A.D.2d 747 (4th Depít 2004)

 

Rejection of relocation request affirmed.Chancer v. Stowell, 5 A.D.3d 1082 (4th Depít 2004)

 

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 Depít 2004)

†††††††††††

Error to grant temporary supervised visitation summarily over Law Guardianís objection.Matter of Karen A.O., 6 A.D.3d 1100 (4th Depít 2004)

 

Joint custody affirmed.Schlafer v. Schlafter, 6 A.D.3d 1202 (4th Depít 2004)

 

Law Guardians -- conflict of interest.No error in assignment of former Law Guardian of another child of respondent as petitionerís counsel.Fralix v. Thornock, 8 A.D.3d 890 (4th Depít 2004)

 

Refereeís conditional custodial award affirmed (conditioned on fatherís moving into a certain school district).Mc Tighe v. Pearl, 8 A.D.3d 951 (4th Depít 2004) (3-2 decision).

 

Appellate Division finds extraordinary circumstances and remits for ďbest interests.ĒRodrigues v. Albino, 8 A.D.3d 1031 (4th Depít 2004)

 

Error to dismiss petition seeking permission to relocate at close of petitionerís case.Stone v. Wyant, 8 A.D.3d 1046 (4th Depít 2004)

†††††††††††

Appellate Division makes findings and affirms.Vezina v. Vezina, 8 A.D.3d 1047 (4th Depít 2004)

 

Petitions for violation of prior order and modification properly dismissed summarily.†††† Schwitzer v. Plank, 8 A.D.3d 1077 (4th Depít 2004)

 

Petitionerís unacknowledged and untreated mental health problems support custody to respondent.††††† Booth v. Booth, 8 A.D.3d 1104 (4th Depít 2004)

 

Reversible error to refuse to allow testimony regarding third partyís 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 Depít 2004)

 

Dismissal of petition to terminate grandparentís visitation proper.Wojcik v. Newton, 11 A.D.3d 1011 (4th Depít 2004)

 

Parent of deceased parent has standing to seek visitation.OíNeill v. Nunziato, 11 A.D.3d 1023 (4th Depít 2004)

 

Award of custody to paternal aunt affirmed.Miller v. Michalski, 11 A.D.3d 1029 (4th Depít 2004)

 

Family Court must articulate basis for sanctions award.Wallace B.O. v. Christine R.S.-O., ††††††-- A.D.3d --, 784 NYS2d 437 (4th Depít ††2004)

 

Case held and matter remitted for Family Court findings.Russell v. Banfield, ††††††A.D.3d ††††††, 784 NYS2d 446 (4th Depít 2004)

 

Award of custody to childís great-aunt affirmed.†† Eleanore B.R. v. Shandy S., -- A.D.3d --, 784 NYS2d 807 (4th Depít 2004)

 

Motherís 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 Depít 2004)

 

Great-aunt has standing to petition for custody of child in foster care.Veronica G. v. Monroe Count Depít. of Human & Health Servs., 4 Misc. 3d 1007 (A) ( Fam. Ct. Monroe Co. 2004)

 

Petitioner established standing but Court erred in summarily granting custody.Amy H. v. Chautauqua County Depít of Social Services, ††††††A.D.3d ††††††(4th Depít December 8, 2004)

 

Court erred in dismissing petition and granting cross-petition without a hearing.Matter of Elliott v. Major, 1 A.D.3d 940 (4th Depít 2003)

 

South Carolina Court had jurisdiction under UCCJA.Hansen v. Bergin, 1 A.D.3d 968 (4th Depít 2003)

 

Petitioner met his burden of demonstrating a change in circumstances.Maher v. Maher, 1 A.D.3d 987 (4th Depít 2003)

 

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 Depít 2003)

 

Custody properly modified.Williams v. Tucker, 2 A.D.3d 1366 (4th Depít 2003)

 

Contempt order modified.Stuttard v. Stuttard, 2 A.D.3d 1415 (4th Depít 2003)

 

Motion to dismiss properly granted without hearing;no sufficient showing of change of circumstances.†† Di Fiore v. Scott, 2 A.D.3d 1417 (4th Depít 2003)

 

Error to dismiss grandparentís petition based on pendency of divorce action.Follum v. Follum, 302 A.D.2d 861 (4th Depít 2003)

 

No error in summarily denying petition for permission to relocate.††††††† Zito v. Pfohl, 302 A.D.2d 918 (4th Depít 2003)

 

Denial of petition to relocate to China for two-year period reversed.Carncross v. OíConnell, 302 A.D.2d 931 (4th Depít ††2003)

 

Family Court could evaluate evidence of respondentís lapses in judgment.De Felice v. De Felice, 303 A.D.2d 1017 (4th Depít 2003)

 

Custody to Grandmother reversed: No extraordinary circumstances.Blasdell v. De Golier, 303 A.D.2d 1045 (4th Depít 2003)

 

Recusal of Judge and disqualification of Law Guardian not required.Herald v. Herald, 305 A.D.2d 1080 (4th Depít 2003)

 

Transfer of custody affirmed.Pinkerton v. Pensyl, 305 A.D.2d 1113 (4th Depít 2003)

 

No error in denial of respondentís request for in camera .†† Hill v. La Paglia, 306 A.D.2d 909 (4th Depít 2003)

 

Inability to communicate but no change in circumstance.Marcantonio v. Marcantonio, 307 A.D.2d 740 (4th Depít 2003)

 

Experts.Childís communication with therapist properly admitted. Billings v. Billings, 309 A.D.2d 1194 (4th Depít 2003)

 

Court must state basis for award of counsel and Law Guardian fees.Leisten v. Leisten, 309 A.D.2d 1202 (4th Depít 2003)

 

Change in circumstances, but denial of modification affirmed.Steele v. Rose, 309 A.D.2d 1242 (4th Depít 2003)

 

Trial.Minimal reliance on hearsay statement in Law Guardianís summation held harmless; psychological evaluation not required.Tracy v. Tracy, 309 A.D.2d 1252 (4th Depít 2003)

 

 

 

Effect of Domestic Violence on Custody Determinations:

 

A. Domestic Relations Law:

 

††††††††††† Under Domestic Relations Law ß 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 Depít 2004): The Appellate Division held that the Family Court had sound and substantial basis for granting sole custody of children to father.Although mother had been children's primary caretaker from their birth, she had been diagnosed with depression and paranoia, was currently receiving disability income for that mental condition, but refused to acknowledge her diagnosis or to obtain treatment for her mental condition through counseling or medication.There had been one incident of domestic violence when the father grabbed the mother, using obscene and abusive language.However, the children had not been upset after that incident occurred, and the father was otherwise an appropriate caretaker.

 

††††††††††† -. 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 motherís 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 childrenís 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 ďtragicĒ as the mother was the more capable parent in all other respects.

 

Temporary custody to father notwithstanding motherís allegations of domestic violence.Award of temporary custody pending psychological evaluations of both parents upheld.ďIn 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]ĒMauter v. Mauter, 309 A.D.2d 737, 738 (2d Depít 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 Depít 2003)

 

Custody order reversed and case remanded for failure to consider allegations of domestic violence.Samala v.Samala, 309 A.D.2d 798 (2d Depít 2003).

 

Custody to mother who is granted divorce on grounds of cruel and inhuman treatment.Reed v. Reed, -- A.D.3d -- (2d Depít Dec. 27, 2004).

 

 

Last updated January 8, 2005

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