A mother’s application to relocate with her children to Arizona was properly dismissed where she failed to establish that the relocation would enhance the children’s lives economically or emotionally. In its January 29, 2004 decision in Christy v. Christy, the Second Department affirmed the order of Suffolk County Family Court Attorney Referee Roseann Orlando
Parent May Assert Malpractice Claim Against Attorney for the Child as Defense to Fee Application
Following a custody/visitation dispute, a parent may assert a malpractice claim as a defense to the application for the payment of fees of the Attorney for the Children. However, in its December 5, 2013 opinion in Venecia V. v August V., the Appellate Division, First Department, held that no malpractice had been committed, and no hearing was required to reach that conclusion.
The parties were the divorced parents of three children, now ages 17, 14 and 11. In their divorce action, the trial court had directed that mother would have primary residential custody in the marital apartment in Manhattan. When the mother moved for an order allowing her to relocate with the children to Demarest, New Jersey, approximately 12 miles outside Manhattan, the father responded by moving for a change of custody. Jo Ann Douglas was then appointed Attorney for the Children.
Among the decisions below, New York County Supreme Court Justice Matthew F. Cooper allowed the relocation. The father’s visitation schedule was modified to account for the children’s schedule, including various extracurricular activities that required them to be in New Jersey.
Opposing the fee application of the Attorney for the Child (“AFC”), the father claimed that attorney had committed malpractice. He claimed that the children’s attorney ignored her professional duty by advocating the position advanced by two out of the three children (that they wanted to relocate with their mother), when the children lacked the “capacity for knowing, voluntary and considered judgment.” The father also claimed that the AFC violated the rules governing professional conduct in matrimonial matters by ignoring “abundant evidence that her clients’ judgment was not voluntary and in fact was manipulated by their mother.” The father charged that the AFC ignored the forensic expert’s observations and conclusions that the mother controlled and manipulated the children, and purposely alienated the children from him. He further argued that the AFC failed to consider post-relocation events, engaged in improper ex parte communications with the court, and assisted the mother in reducing his visitation.Continue Reading Parent May Assert Malpractice Claim Against Attorney for the Child as Defense to Fee Application
Hearing Ordered to Determine Custody of Dog in Divorce Action
Blending science, culture, compassion and philosophy with legal precedent, Justice Matthew F. Cooper, in his November 29, 2013 opinion in Travis v. Murray, agreed to hold a one-day, winner-take-all hearing to determine the fate of a divorcing couple’s dog, Joey, a two and a half year-old miniature dachshund.
Shannon Louise Travis and Trisha Bridget Murray were married on October 12, 2012. Before their marriage, they resided in the same Upper Manhattan apartment that they continued to occupy after the marriage. On February 6, 2011, while the parties were living together, but before they married, Ms. Travis bought Joey from a pet store. At the time of Joey’ purchase, he was a ten week-old puppy.
On June 11, 2013, defendant moved out of the marital apartment while plaintiff was away from New York on a business trip. Defendant took some furniture and personal possessions with her. She also took Joey. According to plaintiff, defendant first refused to tell her where Joey was, but then later claimed that she had lost him while walking in Central Park.
Ms. Travis filed this Supreme Court, New York County action for divorce on July 11, 2013. Two months later she made this motion requesting that Ms. Murray be directed to immediately account for Joey’s whereabouts since the date he was removed from the marital apartment, that he be returned to Ms. Travis’s “care and custody,” and that she be granted an “order of sole residential custody of her dog.” Once the motion was made, Ms. Murray revealed that Joey was never lost in Central Park, but instead was living with her mother in Freeport, Maine.
Philosophically, Justice Cooper noted:
People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry. All too often, onetime happy spouses end up as decidedly unhappy litigants in divorce proceedings. And when those litigants own a dog, matrimonial judges are called upon more and more to decide what happens to the pet that each of the parties still loves and each of them still wants.
Continue Reading Hearing Ordered to Determine Custody of Dog in Divorce Action
Same-Sex Spouse of Biological Mother May Seek Custody and Visitation
The same-sex spouse of an artificially-inseminated biological mother is entitled to seek custody and visitation of “their” child in the the parents’ divorce action. Such was the holding of the Appellate Division, Second Department, in its November 6, 2013 decision of in Counihan v. Bishop.
In May 2009, Ms. Counihan and Ms. Bishop traveled to Connecticut to be married. They then returned to live in their home in New York. Subsequently, they decided to have a child. Ms. Bishop was artificially inseminated, and, in September 2010, Ms. Bishop gave birth to a child.
Ms. Counihan was listed as the second mother on the child’s birth certificate. The child’s last name is the hyphenated last names of Ms. Counihan and Ms. Bishop. In 2012, the parties separated, and Ms. Bishop and the child lived apart from Ms. Counihan for several months. However, Ms. Counihan continued to see the child a few times per week, which included overnight visits. The parties briefly lived with each other again at the end of 2012, but their attempt to reconcile failed, and Ms. Bishop again moved with the child to another residence.
In January 2013, Ms. Counihan commenced this action for a divorce and ancillary relief. She sought custody of the child, or in the alternative, visitation. Ms. Bishop cross-moved, inter alia, for sole custody of the child.
In the order appealed from, Suffolk County Supreme Court Justice John C. Bivona determined that Ms. Counihan lacked standing to seek custody or visitation because she was not the child’s biological or adoptive parent. Without a hearing, Justice Bivona had denied Ms. Counihan’s motion and granted Ms. Bishop’s cross-motion for sole custody.Continue Reading Same-Sex Spouse of Biological Mother May Seek Custody and Visitation
NYC Dept. of Ed.'s Policy Upheld: Primary Physical Custodian's Directions Will Be Followed Despite Shared Legal Custody
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
Sporadic Visitation by Father is Basis to Increase Child Support
Where a divorce settlement agreement provides that the parties have agreed to deviate from the Child Support Standards Act formula in part because of the time the “non-custodial” parent is to spend with the children, a substantial reduction in that visitation may result in an increase in the child support obligation.
Such was the holding of the Fourth Department in its September 27, 2013 decision in Gallagher v. Gallagher.
That parties’ original child support obligation was fixed by their separation agreement. That separation agreement had been incorporated, but did not merge into the parties’ Judgment of Divorce. The agreement recited that the father’s obligation varied from the Child Support Standards Act formula due to several factors including the fact that the children were to spend a significant portion of time with the father pursuant to the visitation schedule set forth in the separation agreement. [We are not provided with the amount of the child support obligation, the incomes of the parties, nor the agreement’s visitation schedule.]
When the father’s relationship with the children broke down, the mother petitioned the Steuben County Family Court for an upward modification of the father’s child support obligation. She alleged that there was now only sporadic visitation with the children, as a result of which the mother claimed a concomitant increase in her child-rearing expenses.
The evidence presented before Family Court Judge Joseph W. Latham established that such a breakdown occurred. However, Judge Latham ruled that the mother failed to establish a sufficient change in circumstances to warrant modification of the father’s child support obligation.
The Fourth Department disagreed. Quoting the 2002 decision of the Court of Appeals in Gravlin v. Ruppert, 98 N.Y.2d 1, 6, 743 N.Y.S.2d 773 (2002), the Fourth Department stated:
The complete breakdown in the visitation arrangement, which effectively extinguished [the father’s] support obligation, constituted an unanticipated change in circumstances that created the need for modification of the child support obligations.
The Fourth Department therefore reversed the order, reinstated the mother’s petition, and remitted the matter to the Family Court for a determination of the appropriate amount of support to be paid by the father, after a further hearing if necessary.Continue Reading Sporadic Visitation by Father is Basis to Increase Child Support
Father's Visitation Complaints May Have Lost Him Joint Custody
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
14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding
Particularly in light of the allegations that the mother threatened to retaliate against her 14-year old daughter’s testimony supporting the father, it was an abuse of discretion for the trial Judge to require the daughter to testify in open court in this custody modification proceeding. The girl should have been interviewed by the judge in chambers without her parents and their lawyers being present.
That sentiment was noted by the Appellate Division, Third Department, in its June 27, 2013 decision in Casarotti v. Casarotti that affirmed Madison County Family Court Judge Biagio DiStefano‘s order changing primary physical custody of the girl from the mother’s residence in New York to the residence of her father in California, despite the presence of the daughter’s 18- and 20-year old siblings in New York.
In this case, the parties were the divorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). The younger daughter was the only subject of this proceeding.
The family had lived together in northern California until the parties’ separation in 2000. At that time, the mother moved with the three children to New York. The parties later consented to joint custody of the children in a stipulation that was incorporated, but not merged into their 2007 judgment of divorce. In accordance with the stipulation, the mother maintained primary physical custody of the children in New York. The father, who remained in California, was granted liberal parenting time during weekends, winter holidays and summer vacations.
In July 2012, the father commenced this custody modification proceeding, seeking primary physical custody of the child. He alleged that the two older children had moved out of the mother’s house, the mother was emotionally abusive to the youngest child, and that the child now wanted to live with him in California.
Judge DiStefano held a hearing at which the parties, the 14-year-old child and her 20-year-old sister testified. Judge DiStefano granted the father’s petition and awarded him primary physical custody, while otherwise maintaining joint custody.Continue Reading 14-Year-Old Daughter Should Not Have Been Made to Testify in Front of Parents in Custody Modification Proceeding
Voodoo Not Accepted as Basis for Custody or Visitation
A maternal grandmother, who claimed that her granddaughter’s injuries were not caused by her parents, but the result of a voodoo ritual, was denied custody and visitation by the Appellate Division, First Department. Its June 13, 2013 decision in In re Antoinette McK affirmed the order of New York County Family Court Judge Rhoda J.
Mother’s Driving While Impaired Warrants Hearing on Father’s Application to Limit Mother’s Visitation
The Appellate Division, Second Department, has held that a father’s application for sole custody and for supervised visitation for the mother, should not have been denied without a hearing, where the father had alleged that the mother operated a motor vehicle in a impaired state, posing a danger to the children.