Best Interests of the Child

Children in balanceOn the night of August 24, 2013, the father received an email from the mother stating that she and the children had moved from East Hampton to Westhampton Beach—a distance of about 32 miles. Under their divorce settlement stipulation entered just 3 months earlier, it was agreed that the parties would share joint custody of their two children. The mother was to have residential custody of the children, subject to parenting time by the father from 4:00 p.m. to 6:00 p.m. on Mondays, Tuesdays, and Thursdays, from 4:00 p.m. to 7:30 p.m. on Wednesdays, and on alternate weekends (i.e., on 8 out of 11 days).

In September, 2013, the father moved to enjoin the mother from relocating. At the ensuing hearing, the father testified that he normally works from 8:00 a.m. until 4:00 p.m. on weekdays. He testified that it usually took him about five minutes after finishing work to drive to the former marital residence in East Hampton to pick up the children for visitation. He further testified that it now took him 50 minutes to drive from his home in East Hampton to the mother’s new home in Westhampton Beach.

The mother testified that she moved because she had voluntarily changed jobs from a bank located in Bridgehampton to a bank located in Medford, and that the move cut 30 minutes off her new commute in each direction. She testified that her total compensation at the new job was comparable to her total compensation at her old job. She further testified that she moved to be closer to her parents in Riverhead. She testified that the children saw her parents about twice a month when they lived in the former marital residence in East Hampton, and about once a week after the move to Westhampton Beach.

Sufflok County Supreme Court Justice Stephen M. Behar granted the father’s motion to enjoin the mother’s relocation. The mother appealed.

Continue Reading Father’s Frequent Weekday Visitation Precludes Mother's 32-mile Relocation

Two of three November 5, 2014 custody decisions of the Appellate Division, Second Department, reversed Family Court determinations.

In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:

Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.

Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.

In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.

Continue Reading Appellate Reversals of Custody Decisions

In two decisions this month, appellate courts reversed Family Court orders and dismissed petitions for grandparent visitation.

In Pinsky v. Botnick, the petitioner was the paternal grandmother. Her son had died at the age of 35, survived by his widow and 4 children, then ages 9, 7, 5, and 3. Her Family Court petition for visitation was filed approximately six weeks after her son’s death.

At the hearing, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that the mother was a fit parent. However, according to the mother, the children were hysterical about the court proceeding, fearful that the grandmother would take them away from their mother. The attorney for the children informed the Family Court that the children did not wish to see their grandparents.

Nassau County Family Court J.H.O. (and former Judge) Elaine Jackson Stack denied the mother’s application to appoint a neutral forensic evaluator. The mother retained Peter J. Favaro, Ph.D., whose report was received in evidence. Dr. Favaro reported that the children were experiencing a “complicated bereavement”: the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. Dr. Favaro concluded that forcing interaction between the children and grandparents would only strengthen those fears.

Continue Reading Grandmothers Denied Visitation in Two Recent Appellate Reversals

Grandma and child 1.jpgThree appellate decisions published the last week in October provide a primer on awards of custody to non-parents.

In its October 27, 2011 decision in Matter of Wayman v. Ramos, the Third Department reversed Broome County Family Court Jusge Spero Pines‘ dismissal of a grandparents’ petition for custody of five and six year old children. In July, 2007, the mother (who had been awarded custody of the children following her separation from her husband) left the children with her parents while she attempted to stabilize her life. By November, 2007, with the mother’s consent and the father’s failure to appear, joint legal custody of the children had been awarded to both the mother and her parents, with primary physical custody being awarded to the grandparents.

Shortly thereafter, however, each of the mother and father filed a petition seeking sole custody of the children. In April, 2009, the Family Court dismissed both parents’ petitions on the grounds that there had not been a sufficient change in circumstances since November, 2007, to warrant a modification of the prior arrangement. On appeal from that dismissal, the Third Department reversed, reinstating the parents’ petitions: the Family Court had failed to make the required threshold determination that extraordinary circumstances existed to warrant the award of custody to a non-parent. Moreover, on the record before the Third Department of 2010, the appellate court believed no such extraordinary circumstances existed.

Thus, the Third Department has an apparent rule that extrarodinary circumstances must be demonstrated by the non-parent custodian at each proceeding.

In Wayman, while the Family Court was considering the matter again, the children continue to reside with their maternal grandparents. In September 2010, the grandparents commenced their own proceedings seeking sole custody (they had joint legal custody with the mother under the November, 2007 order). In response to the September, 2010 application of the grandparents, the mother (who had herself moved to Florida in April 2009), also sought sole custody. Family Court Judge Pines dismissed the grandparents’ custody petition without providing the grandparents with a hearing, concluding that even if the facts alleged by the grandparents were true, such would not constitute extraordinary circumstances warranting an award of custody away from the parents.

The Third Depatment’s October, 2011 decision, disagreed with the Judge Spero’s dismissal of the grandparents’ custody petition without a hearing. The appellate court noted that generally:

the parent’s claim is superior in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances.

In that regard,

evidence that the parent has failed either to maintain substantial repeated and continuous contact with the child or to plan for the child’s future has been found to constitute persistent neglect sufficient to rise to the level of an extraordinary circumstance.

Generally, the Third Department ruled, a hearing must be conducted unless the grandparents failed to make a sufficient should showing which would warrant such a hearing, or the the court had sufficient information to undertake a comprehensive independent review of the children’s best interests in the absence of a hearing.

Continue Reading Grandparent and Non-Parent Custody Requires Both Extraordinary Circumstances and the Best Interests of the Child