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.

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

Child balancing parents 2.jpgTwo 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 to a father where the mother and her family deliberately interfered with the father’s relationship with the parties’ son. The mother had omitted the father’s name from the child’s birth certificate, failed to include the father in the planning of the child’s christening and first birthday party, and sought police intervention to prevent the father from gaining access to the child.

Interference with the relationship between a child and the noncustodial parent is “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.”

That same day. the Second Department in DeViteri v. Saldana affirmed Westchester Family Court Judge David Klein‘s award of custody to a father, holding:

Although the evidence adduced at the hearing indicated that both parents were loving and competent caregivers, the evidence also demonstrated that the father had shown a greater ability and willingness than the mother to foster the child’s relationship with the other parent.

Earlier this month, I discussed the April, 2012 decision of the Third Department in Jeannemarie O. v. Richard P. which upheld the award to a father of temporary custody of the children where the mother’s positive attributes were outweighed by her cumulative efforts to interfere with the father’s relationship with the children.

The courts have made it increasingly clear, the effect an award of custody to one parent might have on a child’s relationship with the other parent is a substantial factor in custody determinations, perhaps second only to the catch-all “best interests of the child.”

In Purse, the father was represented by Maria I. Moir, of Moir & Saltz, LLP, of Greenlawn. The mother was represented by John Virdone of Garden City.

In DeViteri, the father was represented by Alex Smith of the Dreyer Law Offices, PLLC, of Newburgh. The mother was represented by Lisa Beth Older, of New York City. Martin N. Ashley was the Attorney for the Child.