Selected Cases Relating to Trial



Communications between child and therapist.  


“We reject respondent's contention that the court erred in admitting in evidence the communication of the child to her therapist. That communication, admitted with the consent of the Law Guardian, was material and necessary to the court's determination of the child's best interests (see generally Perry v Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382).”  Billings v. Billings, 309 A.D.2d 1194, 1194, 765 N.Y.S.2d 297 (4th Dep’t 2003).



Use of tapes;  harmless error.


“While it was error to admit the recording of the conversation between the father and the son, that error was harmless, since there was ample evidence to evaluate the best interests of the child without resorting to the recording of the conversation between the father and the son (see, Janecka v Franklin, 131 AD2d 436; Matter of Berk v Berk, 70 AD2d 943).  Jaeger v. Jaeger, 207 A.D.2d 448, 616 N.Y.S.2d 230 (2d Dep’t 1994). 




“Ample evidence is available to evaluate the best interests of the children without resorting to illegally obtained recordings of conversations between the mother and her children.”  Berk v. Berk, 70 A.D.2d 943, 417 N.Y.S.2d 785 (2d Dep’t 1979).



Use of tapes at trial.  See Johnson v. Johnson, 235 A.D.2d 217, 217-18, 652 N.Y.S.2d 504 (1st Dep’t 1997) in this program book, cases on discovery.



Advocate-witness rule.

Application to disqualify Law Guardian based on advocate-witness rule denied.


“Although the mother sought disqualification on the ground that the Law Guardian might be called as a witness and thus that the advocate-witness rule would thereby be violated, she failed to meet her burden of establishing the necessity for that testimony. [citations omitted].  In any event, the Law Guardian was not in fact called as a witness, and thus the advocate-witness rule was not implicated.”  Herald v. Herald, 305 A.D.2d 1080, 1081 (4th Dep’t 2003). 



Mental health evidence. 


“It is well settled that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition (see, CPLR 4504) by actively contesting custody (see, Baecher v Baecher, 58 AD2d 821; People ex rel. Chitty v Fitzgerald, 40 Misc 2d 966). However, "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" ( Perry v Fiumano, 61 AD2d 512, 519).  McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477 (2d Dep’t 1994).



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 Dep’t 2003)



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 Dep’t 2003)



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 Dep’t 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. “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 Dep’t 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 Dep’t 2003)



Weight of Law Guardian’s and expert’s positions.


 “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 Dep’t 2004)



Trial.  Appellant’s behavior in courtroom supported award of sole custody to respondent.  Caraballo v. Colon, 9 A.D.3d 459 (2d Dep’t 2004)



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 Dep’t 2004)



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 Dep’t 2004). 

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 Dep’t 2004)



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 Dep’t 2003)



Trial.  Order reversed as grant of custody was made without conducting an evidentiary hearing.  Pudalov v.  Pudalov, 308 A.D.2d 524 (2d Dep’t 2003)



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. 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).



Change of custody improper sanction for contempt.  Labanowski v. Labanowski, 4 A.D.3d 690 (3d Dep’t 2004)



Polygraph testimony improper: 


“Family Court improperly allowed the results of a psychophysiological detection of deception examination, a type of polygraph examination, into evidence through the psychologist's report. The Court of Appeals has held, in the criminal context, that polygraph evidence is not admissible because it has not been established as sufficiently reliable within the scientific community (see People v Angelo, 88 N.Y.2d 217, 223 [1996]; People v Shedrick, 66 N.Y.2d 1015, 1018 [1985]). Every other department of the Appellate Division has imported that holding into the Family Court arena (see Matter of Stephanie B. [Keith B.], 245 A.D.2d 1062, 1063 [4th Dept 1997]; Matter of Erick R. [Eric R.], 166 A.D.2d 161, 162 [1st Dept 1990], lv denied 77 N.Y.2d 802 [1991]; Matter of Aryeh-Levi K. [Caryn K.], 134 A.D.2d 428, 429 [2nd Dept 1987]). We agree that polygraph examination results should not be admitted into evidence because they have not been established as sufficiently reliable.”     In re Lauren B., -- A.D.3d -- (3d Dep’t Dec. 30, 2004). 



Last updated January 8, 2005

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