Extraordinary Circumstances

The calculations required by the C.S.S.A. to be made by an arbitrator in child support determinations provide the “extraordinary circumstances” needed  to warrant court-ordered disclosure of documents from a self-employed ex-husband. Such was the ruling of Kings County Supreme Court Justice Jeffrey S. Sunshine in his November 6, 2013 decision in Weisz v. Weisz.

In 2003, the Weisz’s had entered into a stipulation of settlement of their divorce in which they agreed that all controversies, disputes, or interpretation of this agreement, would be arbitrated by a specified rabbi. The 2004 judgment of divorce incorporated by reference that stipulation which survived and did not merge into the judgment.

In 2012, Ms. Weisz brought on an order to show cause seeking a stay of a post-judgment arbitration proceeding and the disqualification of the specified rabbi as the arbitrator. The stay was granted as to custody and visitation issues, but denied as to all financial issues.

The issues to be arbitrated related to an upward modification of child support, child support arrears, unreimbursed medical arrears, child support statutory add-on arrears, tutor expenses and spousal support.

Continue Reading Court Orders Disclosure to Aid in Arbitration of Child Support Issues

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