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 custody over a surviving parent.
In Wright v. Kaura, the Second Department reversed a joint legal custody award to grant sole legal custody to a mother. The appellate court noted that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.
Here, joint legal custody was inappropriate as the parties demonstrated an inability to cooperate on matters concerning the child. The record was replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child. Thus, Acting Westchester Family Court Judge Thomas R. Daly erred when awarding the parties joint legal custody of their child.
In Lawlor v. Eder, the Second Department held that a father’s refusal to encourage and foster meaningful contact between the child and the mother was the basis to award residential custody to the mother, although the parents shared joint legal custody.
A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.
Nassau County Family Court Court Attorney/Referee Robert A. Lo Presti found that while both parents had exhibited shortcomings as parents, it was undisputed that the child loved both parents and was happy in the custody of either the mother or the father and that both parents were capable of providing for the child’s emotional and intellectual development. However, Mr. Lo Presti also found that during the period when the child was in the temporary custody of the father, the father had failed to promote the child’s relationship with the mother. Such conduct was adverse to the child’s best interests and had been harmful to the child. The mother was the parent more likely to assure meaningful contact between the child and the noncustodial parent.
In Stramezzi v. Scozzari, the Second Department reversed an award of custody to a father by Nassau County Family Court J.H.O. Elaine Jackson Stack because J.H.O. Stack failed to privately interview the children. Such an interview, even without the parties’ consent and in the absence of counsel (“in camera”), is known as a Lincoln hearing commemorating the 1969 Court of Appeals decision that approved the procedure. There, the Court of Appeals stated:
It requires no great knowledge of child psychology to recognize thata child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them or be required to openly choose between them. The trial court however, if it is to obtain a full understanding of the effect of parental differences on the child, as well as an honest expression of the child’s desires and attitudes, will in many cases need to interview the child. There can be no question that an interview in private will limit the psychological danger to the child and will also be far more informative and worthwhile than the traditional procedures of the adversary system — an examination of the child under oath in open court.
In Stramezzi, the Second Department ruled that in the absence of such in camera interviews, the record was insufficient to make a fully informed determination as to what custody arrangement would be in the children’s best interests. In camera interviews would aid in determining the proper custody arrangement because the children were old enough to provide insight as to their interaction with each parent, and the impact of separating them from their older half-brother, who resided with the mother and with whom they had a close relationship. In addition, the children’s preference, while not determinative, might also be indicative of the children’s best interests.
Accordingly, the case was sent back to the Family Court for a new hearing during which in camera interviews with the subject children are to be conducted.
John Virdone and Thomas Weiss of the Virdone Law Firm, P.C., of Garden City represented mother. Glenn S. Koopersmith, of Garden City, represented the father. Patricia A. Sokolich, of Garden City, served as attorney for the children.
In Kellezi v. Kellezi, the Second Department affirmed a finding that a mother was in contempt of court for her violation of the visitation rights of the father. Contrary to the mother’s contentions, Westchester County Family Court Judge Malone properly found that the father had proven by clear and convincing evidence that the mother willfully violated clear and unequivocal court orders, thereby prejudicing the father’s right to visitation with the children. A $250 sanction against the mother was imposed for each violation.
Finally, in Andracchi v. Reetz, the Second Department affirmed an order of Nassau County Family Court Judge Edmund Dane dismissing without a hearing of a maternal aunt’s custody petition following the death of the mother of the child.
As between a parent and a nonparent, the parent has a superior right to custody which cannot be denied absent a showing of surrender, abandonment, persisting neglect, unfitness, or other similar extraordinary circumstances.
A nonparent seeking custody of a child against the wishes of a parent has the initial burden of establishing the existence of extraordinary circumstances. Here, the aunt failed to establish the existence of extraordinary circumstances sufficient to warrant a hearing with regard to the child’s best interests.