It has been said that the court system is broken; its resources stretched to a point where its purposes cannot be achieved.

Take this month’s decision of the Appellate Division, Second Department, in Middleton v. Stringham.

On June 22, 2011, the parties agreed to share joint legal custody of their two children, with physical custody to the mother and liberal parenting time to the father. The parties were divorced by a judgment of divorce entered January 10, 2012. Seven months later, the mother filed a petition to modify the stipulation so as to award her sole legal and physical custody of the children, and the father cross-petitioned for the same relief. After a hearing at which the parties and two of their parent coordinators testified, Westchester County Family Court Judge David Klein modified the stipulation so as to award the father sole legal and physical custody of the subject children.

Generally, on a petition for a modification of joint custody, a court is required to determine whether the parents’ interaction was so acrimonious that it effectively precluded them from joint decision-making, and if so, to award sole custody to whichever parent serves the best interests of the children. Here, however, the Second Department held that the determination that it was in the best interests of the children to award sole custody to the father lacked a sound and substantial basis in the record.

The custody hearing concluded on May 15, 2014, over 20 months after the mother’s  petition was filed, and the order appealed from was issued 6 months after that.

For the most part, the evidence at the hearing focused upon allegations, events, and circumstances relating to the period of time that preceded the filing of the petition and cross petition, and the parents’ acrimonious relationship with each other, with limited evidence about the children’s more current circumstances and best interests. Accordingly, the appellate court found that a new hearing was needed to allow the court to elicit more up-to-date evidence.

Moreover, the Second Department noted that under the unique facts of the case (not discussed), and despite the children’s relatively young ages, the court should have conducted in camera interviews with the children.

The Second Department directed that the new hearing, in camera interviews, and new determination should be done with “all convenient speed.”

The parties have now been litigating for the three years that followed the one-year respite after they settled their custody dispute the first time. These cross-proceedings took so long that the reasons there were brought were no longer relevant. Instead, the appellate court wanted to know what had been going on while the Family Court proceeding was ongoing. Even with  “all convenient speed,” the resolution (with appeal) will take another year or two.

From the children’s perspective, it must seem like their entire lives have been spent with the sights and sounds coming from the court-system battleground. We owe them better.

William J. Larkin III, Esq., of Larkin, Ingrassia & Brown, LLP, of Newburgh, represented the mother. Neal D. Futerfas, Esq., of White Plains, N.Y., represented the father. Joy S. Joseph, Esq., of White Plains, N.Y., served as attorney for the children.

Difficult choiceA recent Swedish study based on a survey of almost 150,000 6th and 9th-grade students revealed that children who live equally with both parents after parental separation suffered from fewer psychosomatic problems than those living mostly or only with one parent. As might be expected, children of separated parents generally reported more psychosomatic problems than those in intact “nuclear” families.

A group of Swedish university and government child experts published their results online April 28, 2015 in the Journal of Epidemiology & Community Health in the article, Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children?

Using responses along the range of “never,” “ seldom,” “sometimes,” “often” and “always,” the survey investigated correlations between parenting arrangements and “psychosomatic” problems including difficulties in (1) concentration and (2) sleeping; suffering from (3) headaches and (4) stomach aches; feeling (5) tense, (6) sad and (7) dizzy and (8) loss of appetite. The students were asked to respond to the survey questions with

The authors noted that during the past 20 years, it has become more common for children in the Western world to live alternatively and equally with both parents after a parental separation. In Sweden, this practice of joint physical custody is particularly frequent and has risen from about 1–2% in the mid-1980s to between 30% and 40% of the children with separated parents in 2010.

Over the same period, however, there has been an increase in self-reported pediatric psychosomatic symptoms. Already, stressful circumstances such as bullying, economic stress in the family, peer and teacher relationships, schoolwork pressure and lack of emotional support from the parents have been shown to be related to psychosomatic symptoms in Swedish adolescents.

Continue Reading Does Shared Custody Result In Less Stress Than Other Post-Divorce Parenting Plans?

The Second Department has modified an order of Suffolk County Family Court Attorney-Referee Roseann Orlando to direct that when one parent is working, that parent, prior to making babysitting arrangements with a nonparent, shall first afford the other parent the opportunity to care for the subject child during such work period.

In its August 27, 2014 opinion in Matter of Saravia v. Godzieba, the Appellate Division otherwise upheld Referee Orlando’s order that had granted the mother sole custody of the parties’ almost 3-year old son.

The mother and the father had never been married. After the birth of their son in September, 2011, the parties resided together for approximately six months until the mother, with the child, moved out. In June, 2012, the parties cross-petitioned for sole legal and physical custody of the child. After a hearing at which the parties and one other witness testified, Referee Orlando awarded the mother sole legal and physical custody of the child.

The evidence at the hearing established that both parents loved the child, were gainfully employed, maintained their own homes, and could adequately provide for the child’s overall development. However, the Family Court, having the benefit of observing and listening to the witnesses, including the testimony of both parties, found that the mother was better suited to place the child’s interests ahead of her own and to foster the child’s relationship with the other parent. Upholding the custody determination, the Second Department held that here was a sound and substantial basis in the record to support Referee Orlando’s determination that it was in the best interests of the child to award sole custody to the mother, with visitation to the father.

Moreover, the Second Department rejected the father’s contention on appeal that an award of joint custody or equal parenting time would have been in the child’s best interests. The parties were sometimes antagonistic toward each other and demonstrated an inability to cooperate on certain important matters concerning the child.

However, the appellate court did add a child care right of first refusal.

Nonetheless, we find that under the circumstances of this case, where both parties have different work schedules and have expressed a desire to care for the child during the periods when the other parent is working, it would be in the best interests of the child for each parent, prior to arranging for a nonparent to babysit the child during a work period, to first afford the other parent the opportunity to care for the child during that time.

Clifford J. Petroske, P.C., of Bohemia, represented the father. No counsel for the mother was listed in the opinion. Thomas W. McNally, of Huntington, N.Y., served as Attorney for the Child.

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 showing sufficient to warrant a hearing on her request to change that arrangement.

For the appellate court, the fact that the parties, who have joint decision-making authority, have different views on education or extracurricular activities did not mean that they could not co-parent. Indeed, the parties had anticipated that they may have these disagreements and provided for a procedure to deal with them in their stipulation of settlement. In the event the procedures failed, as occurred here, the parties reserved their right to resolve such matters in court.

Again supporting joint custody, in Johanys M. v. Eddy A., the First Department on March 11, 2014 reversed the order of Family Court Bronx County Referee Jennifer S. Burtt that had awarded sole custody of a child to the mother.

Referee Burtt had found that the parties had similar abilities to provide for the child financially; that there was no difference in the emotional bonds that they each had established with the child;and that the child had essentially spent an equal amount of time with each party. Nevertheless, the Referee awarded custody to the mother on the grounds that she no longer worked outside the home and thus was “fully available” to care for the child (and a newborn), while the father worked outside the home. The Referee was also concerned about the father’s testimony about the mother because it was “globally negative.”

The First Department, however, found that the it was in the best interests of the child for the parties to have joint legal custody. Although sharing physical custody was no longer feasible because the parties now resided in different boroughs, there was no evidence that the parties’ relationship was characterized by acrimony or mistrust.

Moreover, over the course of the child’s life, the parties had been able to resolve any visitation or custody disputes between themselves. They also appeared to have been in accord with respect to the child’s best interests, despite their failure to communicate directly with each other.

The [father] should not be deprived of a decision-making role in the child’s life because he is unable to care for the child full time. The record shows that he has a strong interest and plays an active role in the child’s life, including aggressively seeking out necessary services to foster the child’s development, and that he arranged for child care while he worked.

Here, although the father’s testimony may have painted an unfairly negative picture of the mother, there was no evidence that he disparaged her in the presence of the child. The record showed that his concern for the child’s welfare was paramount.

Continue Reading Joint Custody: This Month’s Five Appellate Decisions

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, New York County Justice Alexander W. Hunter, Jr., which had declared arbitrary and capricious the Department’s policy of deferring in educational decisions to the parent with primary physical custody. Justice Hunter had ordered the Department to include the father as a joint legal guardian on his child’s school file.

The policy of the Department of Education is to take direction from the parent with primary physical custody where, as here:

the divorced parents of a student have joint legal custody of the student;

the parents are unable to agree on a decision as to the student’s education; and

there is no court order specifying who is entitled to make educational decisions.

The Department had adopted this policy to avoid becoming entangled in custody disputes.

In Jennings, the First Department held that given the options available to the Department for resolving such a disagreement, it could not be said that the policy was without a rational basis in the record. It was not, therefore, arbitrary and capricious.

The appellate court pointed out that this policy did not affect the father’s legal rights as a parent with joint legal, but not primary physical, custody. The father was free to pursue a modification of his judgment of divorce to provide for joint decision-making as to the child’s education.

The opinion did not recite whether or not any stipulation of settlement incorporated into the father’s divorce decree contained a decision-making clause, or whether such a stipulation or the judgment merely declared the parents would share joint legal custody. Similarly, it was not stated whether the Department was refusing to honor an agreement that was incorporated by reference into the divorce judgment.

However, to be prudent, all parental rights should be specifically set forth in the judgment of divorce.

Kathy H. Chang, of counsel to Michael A. Cardozo, New York City’s Corporation Counsel, represented the Department. Thomas D. Shanahan, P.C., represented the father.

Complaining too much about visitation violations may just cause you to lose joint custody. Such may be the lesson to be learned from the September 19, 2013 decision of the Third Department in Green v. Green.

The parties were the parents of a son born in 2004 and a daughter born in 2008. Pursuant to a prior order of the Family Court, the parents shared joint custody of their children, with the mother having primary physical custody.

Within days of the entry of that prior Family Court custody order, the father filed the first of six petitions alleging that the mother was in violation of the custody order. The five other violation petitions were filed over the next several months. The father also filed a petition seeking modification of the prior custody order.

Following a hearing, Judge Dennis K. McDermott of the Madision County Family Court found that there had not been a change in circumstances warranting modification of physical custody. However, because the acrimonious relationship of the parties rendered joint legal custody inappropriate, Judge McDermott awarded sole legal custody to the mother. Judge McDermott also made certain adjustments to the visitation schedule.

On appeal, the Third Department accorded Judge McDermott’s factual findings appropriate deference. The appellate court found no error in the determination that the father failed to establish a change in circumstances sufficient to warrant a change in physical custody.

Moreover, the Third Department found awarding sole legal custody to the mother was appropriate:

[B]ased upon this record, it is evident that the parties are unable to effectively communicate and cooperate with one another. Therefore, upon consideration of all of the circumstances, we conclude that Family Court properly amended the prior order to award sole legal custody to the mother.

Finally, the Third Department found that the adjustments made to the visitation schedule were supported by the record.

Comment: Credibility is greatly affected by demeanor. I am sure both parties in the above case perceived the righteousness of their own positions. However, the manner in which one parent handles perceived violations by the other parent and then how that parent approaches the court are critical to ultimate determinations. No court likes to see a parent crying to it every single time there is a perceived violation. Good faith, maturity, patience and reasonable efforts must be shown.

Many recent decisions have shown the courts’ sensitivity to each parent’s responsibility to foster the relationship between the children and the other parent. However, it is also clear that each parent must meet the other at least part way.

In this case, Theodore W. Stenuf, of Minoa, represented the father. Mark A. Schaeber, of Liverpool, served as Attorney for the Children.

Count the overnights. “Legal” custody or decision-making power does not matter. Child Support is only payable to the parent with the children the majority of the overnights. If overnights are equally shared, the parent with the higher income is deemed to be the noncustodial parent for C.S.S.A. purposes.
Such is the rule of law made clear in two recent Appellate Division cases. In its June 28, 2013 decision in Leonard v. Leonard, the Fourth Department held that despite  the father having sole legal custody, as parenting time was equally shared and the father had the higher income, the father would be deemed the noncustodial parent and obligated to pay child support.

In Rubin v. Della Salla, an April 18, 2013 decision of the First Department, where each parent had spheres of decision-making, it was held that the father with whom the child spent 56% of the overnights could not, as a matter of law, be ordered to pay child support under the C.S.S.A.

In Leonard, upheld the decision of Monroe County Supreme Court J.H.O. to award the husband sole legal custody. The wife sought joint legal custody, bu the Fourth Department agreed that the parents’ acrimonious relationship and inability to communicate effectively with respect to the needs and activities of the children made joint custody not feasible. Moreover, the J.H.O. did not abuse his discretion in failing to split decision-making “zones of influence.”

The Fourth Department, however, held that it was error for the J.H.O. to award child support to the husband. Child support should have been awarded to the wife. As the residency arrangement was shared, and neither parent had the children for a majority of the time, the party with the higher income was to be deemed to be the noncustodial parent for purposes of child support.

Here, the residency schedule affords the parties equal time with the children. Inasmuch as the husband’s income exceeded that of the wife (at the time of trial, the husband earning $134,924.48 annually, with the J.H.O. imputing income of $25,000 to the wife), the husband was the “noncustodial” parent. As such, he must pay child support to the wife.

The Fourth Department acknowledged that the authority presented by the wife involved awards of joint legal custody, whereas the husband, here, was awarded sole legal custody. That fact, however, should not affect the child support determination.

Although the award of sole legal custody to plaintiff allows him to make important decisions in the children’s lives, that decision-making authority does not increase his child-related costs. A parent’s child-related costs are dictated by the amount of time he or she spends with the children.

Continue Reading Parenting Time, Not Legal Custody, Determines Entitlement to Child Support

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

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, in Sequeira v. Sequeira.

The appellate court held that on the motion for such relief, New York County Supreme Court Justice Lori Sattler properly exercised her discretion in determining that it was in the child’s best interest to award the mother that power.

The parties had agreed to joint legal custody, which their agreement defined as including equal input with respect to all major decisions, including education. They did not, however, provide for a situation, such as the one presented, where the parents could not agree on where their child should attend school. The failure of the parents to agree on this issue thus presented the change in circumstances necessary for the court to modify the parties’ arrangement to protect the best interests of the child.

The record supported the temporary award of educational decision-making to the mother. The father’s due process rights were honored by the fair hearing held by Justice Sattler. He was permitted to cross-examine the mother, testify on his own behalf, and argue his case. As to this argument to the appellate court that he was denied an opportunity to hire an attorney, he never made a request to do so.

Comment: “Joint custody” is a nebulous term. Thus, care should be taken to carefully define what the parties intend by the use of that term. If shared decision-making is intended, the particular subjects or criteria requiring the parents’ agreement should be specified. Moreover, the procedure  to resolve conflict must be detailed. The steps to be taken before asking a court to intervene should be made clear. Whether the parents are required to work with a therapist, consult an expert, or engage a mediator as a condition to making a judicial application should be set forth. Moreover, although in New York, the delegation of decision-making to a third party other than the court may be against public policy, providing some authority to an agreed-upon tie breaker may be determined to be in the best interests of the children.

On this appeal, the father represented himself. The mother was represented by Lara Ott of Stein & Ott, LLP, of Manhattan.

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 February 6, 2013 decision on appeal, the Second Department modified that order to add a provision directing the mother to consult with the father regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority for the children, but otherwise affirmed Justice Nicolai’s order.

Although the antagonism between the parties was evident to the appellate court, it was also apparent that both parties generally behaved appropriately with their children, that they could make parenting decisions together, and that the children were attached to both parents. Under those circumstances, there was a sound and substantial basis in the record for Justice Nicolai to have found that the best interests of the children would be served by awarding the parties joint custody. Similarly, the trial record also supported the determination that primary physical custody should be with the mother and that she should have final decision-making authority.

The court, however, should have directed the plaintiff to consult with the defendant regarding any issues involving the children’s health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority.

In his January 8, 2013 decision in Scott M. v. Ilona M., Kings County Supreme Court Justice Jeffrey S. Sunshine awarded the parties joint custody of their son; each parent having access alternating on a weekly basis.

Justice Sunshine did note that a significant factor in determining custody was whether the heated custody dispute, itself, indicated that an award of joint custody would be ineffective. Justice Sunshine cited to the Court of Appeals decision in Braiman v. Braiman, (44 N.Y.2d 584), which rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. That decision concluded:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos.

[Question: If the children live primarily with one parent and that parent has final decision-making authority, what does “joint custody” mean? Is it merely a psychological benefit for the parent and the child? Does it entitle the non-primary custodian to make decisions in emergency situations when the other parent is not available? Braiman, itself, noted that “joint”, or, as it is sometimes called “divided”, custody reposes in both parents a shared responsibility for and control of a child’s upbringing. In Bast v. Rossoff, 167 Misc.2d 749, 752 (Sup. Ct. 1995), affd, 239 A.D.2d 106 (1st Dept 1997), affd as mod and remanded, 91 N.Y.2d 723 (1998), it was stated “In New York the term ‘joint custody’ generally is used to refer only to joint legal custody, or joint decision making.”]

Continue Reading Ordering Joint Custody in Contested Divorce Custody Proceedings