Divorce: New York

Divorce: New York

Category Archives: Custody and Visitation

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Joint Custody: This Month’s Five Appellate Decisions

Posted in Custody and Visitation
Five appellate decisions this month have dealt with the propriety of joint custody awards. On March 20, 2014, the First Department upheld New York County Supreme Court Justice Lori S. Sattler‘s decision to continue the parents’ joint custody arrangement. In Boyce v. Boyce, the appellate court agreed that the mother had failed to make an evidentiary … Continue Reading

Relocation of Mother with Children Requires Showing of Economic or Emotional Enhancement

Posted in Custody and Visitation
A mother’s application to relocate with her children to Arizona was properly dismissed where she failed to establish that the relocation would enhance the children’s lives economically or emotionally. In its January 29, 2004 decision in Christy v. Christy, the Second Department affirmed the order of Suffolk County Family Court Attorney Referee Roseann Orlando that … Continue Reading

Parent May Assert Malpractice Claim Against Attorney for the Child as Defense to Fee Application

Posted in Custody and Visitation
Following a custody/visitation dispute, a parent may assert a malpractice claim as a defense to the application for the payment of fees of the Attorney for the Children. However, in its December 5, 2013 opinion in Venecia V. v August V., the Appellate Division, First Department, held that no malpractice had been committed, and no … Continue Reading

Hearing Ordered to Determine Custody of Dog in Divorce Action

Posted in Custody and Visitation, Equitable Distribution
Blending science, culture, compassion and philosophy with legal precedent, Justice Matthew F. Cooper, in his November 29, 2013 opinion in Travis v. Murray, agreed to hold a one-day, winner-take-all hearing to determine the fate of a divorcing couple’s dog, Joey, a two and a half year-old miniature dachshund.  Shannon Louise Travis and Trisha Bridget Murray were married on … Continue Reading

Same-Sex Spouse of Biological Mother May Seek Custody and Visitation

Posted in Custody and Visitation
The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop. In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut … Continue Reading

NYC Dept. of Ed.’s Policy Upheld: Primary Physical Custodian’s Directions Will Be Followed Despite Shared Legal Custody

Posted in Custody and Visitation
Absent a court order specifying which parent is entitled to make educational decisions, the New York City Department of Education will follow the instructions of the primary physical custodian. The policy was upheld in the October 22, 2013 decision of the First Department in Jennings v. Walcott. The appellate court reversed  the determination of  Supreme Court, … Continue Reading

Sporadic Visitation by Father is Basis to Increase Child Support

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Custody and Visitation
Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation. Such was the holding … Continue Reading

14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding

Posted in Custody and Visitation, Modification
Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers … Continue Reading

Voodoo Not Accepted as Basis for Custody or Visitation

Posted in Custody and Visitation
A maternal grandmother, who claimed that her granddaughter’s injuries were not caused by her parents, but the result of a voodoo ritual, was denied custody and visitation by the Appellate Division, First Department. Its June 13, 2013 decision in In re Antoinette McK affirmed the order of New York County Family Court Judge Rhoda J. Cohen. Judge … Continue Reading

Mother’s Driving While Impaired Warrants Hearing on Father’s Application to Limit Mother’s Visitation

Posted in Custody and Visitation
The Appellate Division, Second Department, has held that a father’s application for sole custody and for supervised visitation for the mother, should not have been denied without a hearing, where the father had alleged that the mother operated a motor vehicle in a impaired state, posing a danger to the children. In Nusbaum v. Nusbaum, … Continue Reading

Custody Issues Considered in Five Second Department Cases Decided May 1st

Posted in Custody and Visitation
In five cases decided May 1, 2013, the Second Department continued to voice its concern when parents just don’t get along. Again, the court considered joint custody, hampering the child’s relationship with the other parent, private interviews of children by the judge, contempt for violations of visitation orders, and whether a non-parent may be granted … Continue Reading

Mother Granted Decision-Making Where Agreement Failed to Provide for Parental Conflicts

Posted in Custody and Visitation
Where the parties’ joint legal custody agreement only provided for each parent to have equal input on all major decisions, including education, but did not provide for conflict resolution, the mother, after a hearing, was awarded temporary decision-making authority. Such was the holding of the April 11, 2013 decision of the Appellate Division, First Department, … Continue Reading

Judge Calls for Bickering Parents to be Mature

Posted in Custody and Visitation
Kings County Justice Matthew J. D’Emic, in his April 3, 2013 decision in E.S. v. S.S., blamed both parents for the stress upon their young daughters. As a result, no change was made to the custody and visitation provisions of the parents’ divorce judgment. Both sides sought changes to the judgment’s visitation schedule. The mother … Continue Reading

Ordering Joint Custody in Contested Divorce Custody Proceedings

Posted in Custody and Visitation
Two decisions this past month involved joint custody awards despite antagonism between the parents and contested custody proceedings. In Prohaszka v. Prohaszka, Supreme Court Putnam County Justice Francis A. Nicolai had awarded the divorcing parties joint legal custody of the parties’ children, with the mother having primary physical custody and final decision-making authority. In its … Continue Reading

Parents Denied, on Cultural Grounds, Name Changes for 4- and 9-Year-Old Daughters

Posted in Custody and Visitation
In an October, 2012 decision, Kings County Civil Court Judge Harriet Thompson, in Matter of Kobra (Hossain), denied on cultural grounds the applications of a mother, Tamannatul Kobra, to change the names of her children: four and nine-year-old females. The two petitions were supported by the consent the girls’ father, Mosharaf Hossain (Ms. Kobra’s husband). The mother sought … Continue Reading

No Custody Change For Mother’s Interest in Spiritual and Paranormal Phenomena

Posted in Custody and Visitation
In a brief August 22, 2012 decision, the Appellate Division, Second Department, in Sano v. Sano, reversed the December, 2011 order of Nassau County Supreme Court Justice Daniel Palmieri and reinstated the provisions of a prior Family Court custody and visitation order under which the mother had been awarded residential custody of the parties’ child. The … Continue Reading

Father’s Failure To Visit Child Is Grounds To Increase Child Support

Posted in Agreements and Stipulations, Child Support (C.S.S.A.), Custody and Visitation
Parents sometimes enter child support agreements which track the presumptive formula set out in New York’s Child Support Standards Act (Family Court Act §413; Domestic Relations Law §240[1-b]). However, parents in their agreements often deviate from the presumptive formula to reflect various considerations. That deviation for a married couple may reflect the delicate balancing of property rights, … Continue Reading

Father Who Coerced Daughter into Making Anti-Mother Journal and Video Limited to Supervised Visitation

Posted in Custody and Visitation
A father’s efforts to push his daughter into keeping a journal disparaging her mother and to be videotaped complaining about her mother caused his visitation to be both supervised and limited. The father’s stated intention to enhance his case that the mother was abusive to her daughter, which both the appointed forensic evaluator and the … Continue Reading

Courts Consider the Effect an Award of Custody to One Parent Might Have on a Child’s Relationship with the Other Parent

Posted in Custody and Visitation
Two May 23, 2012 decisions of the Appellate Division, Second Department, demonstrate the importance in custody determinations of demonstrating whether a parent fosters or hampers the children’s relationship with the other parent. In its decision in Purse v. Crocker, the court affirmed the award of Suffolk County Family Court Referee Kerri Lechtrecker of sole custody … Continue Reading

Attorney For Children Need Not Consent to Parents’ Custody and Visitation Agreement

Posted in Agreements and Stipulations, Custody and Visitation
If the parents reach an agreement resolving custody litigation, may the court approve and order the settlement over the objection of the attorney for the children. Yes, as long as the attorney for the children is given the right to be heard by the court and the court determines that the settlement is in the … Continue Reading

Interference with Children’s Relationship with Father is Basis for Award of Temporary Custody in Divorce Action

Posted in Custody and Visitation, Temporary (Pendente Lite) Relief
As has been the trend, a court has held that despite what may be the superior parenting skills of one parent, that parent may be denied custody if that parent does not promote the relationship of the children with the other parent. In an April 26, 2012 decision, the Third Department in Jeannemarie O. v. Richard … Continue Reading