Two 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
If the parents reach an agreement resolving custody litigation, may the court approve and order the settlement over the objection of the attorney for the children. Yes, as long as the attorney for the children is given the right to be heard by the court and the court determines that the settlement is in the
As has been the trend, a court has held that despite what may be the superior parenting skills of one parent, that parent may be denied custody if that parent does not promote the relationship of the children with the other parent.
In an April 26, 2012 decision, the Third Department in Jeannemarie O. v.
In an April 26, 2012 decision, the Third Department affirmed the order of Delaware County Family Court Judge Carl F. Becker which failed to vacate or modify a prior order granting the mother custody of these unmarried parents’ two children. The order also had refused to provide the father with visitation rights.
In Ildefonso v.
As noted in the February 8, 2010 post, seven very recent decisions reveal just how present are applications by separated parents to relocate with children. These decisions demonstrate that relocation applications will be decided very much on a case-by-case basis. However, common inquiries are evident:
The prior blog post reported on four decisions of the Appellate Division, Third Department. This post discusses the remaining three.
In its January 31, 2012 decision in Ramirez v. Velazquez, the Fourth Department affirmed the order of Oneida County Family Court Judicial Hearing Officer John E. Flemma that denied permission to a 20-year-old mother to relocate with the parties’ three children from Utica to New York City.Continue Reading Relocation of the Single Parent and Child: Recent Decisions (Part II)
Seven decisions published in the last few months reveal just how significant an issue parent relocation remains. Perhaps it results from a difficult economy; perhaps a simple reflection of our mobile society.
Whatever the cause, these decisions reveal the judicial system’s agony when trying to predict the “best interest of a child.”
Four of these decisions come out of upstate’s Appellate Division, Third Department. To begin, in its December 8, 2011 decision in Kirshy-Stallworth v. Chapman, the appellate court affirmed the order of Ulster County Family Court Judge Anthony McGinty which dismissed a mother’s petition to relocate with her eight-year-old daughter and current husband to Western Pennsylvania. The Third Department noted that:
a lower-court decision “will not be disturbed if supported by a sound and substantial basis in the record.”
The court recognized that, admittedly, there were benefits to the mother which might support a decision to allow the relocation. She was disabled and receiving Social Security disability benefits while her husband had suffered a work-related injury and had difficulty finding suitable employment. He was offered a job in a car dealership by the mother’s uncle. There was lower-court testimony of the mother’s excellent parenting, the father’s failure to fully avail himself of visitation rights, and the mother’s promise to facilitate visits with the father after her move.
However, there was a lack of evidence that the mother’s current community was unsatisfactory, or that the child’s current school was not meeting her needs. There was insufficient evidence that the educational opportunities for the child were any better in Pennsylvania. The plans for the mother’s housing and her husband’s employment were not certain. With such a record, the appellate court could not conclude that Judge McGinty’s determination, that the mother had failed to demonstrate that relocation would be in the child’s best interest, lacked a sound in substantial basis. Accordingly, the dismissal of the mother’s petition was affirmed.Continue Reading Relocation of the Single Parent and Child: Recent Decisions (Part I)
Courts have recognized that it is in the best interests of a child to travel with a parent. A court may provide relief when one parent unreasonably withholds consent from the other parent to travel with a child and compel a divorced parent to cooperate with the other parent to secure a passport for a
On October 27, 2011 the Appellate Division, Third Department, affirmed the April 21, 2010 Order of Broome County Family Court Judge Mary Connerton switching primary physical custody of their 8- and 10-year old children from the mother to the father. The parties continue to share joint legal custody.
In Brown v. Brown, The appellate
In fact, we may have all failed the Y. family children (name deleted at the request of the family). Their parents have spent the last four years fighting in court. Their custody litigation will likely last at least another two years.
The result: one child who may be suicidal; the other self-mutilating.
Reading appellate court decisions cannot possibly reveal the nuances faced by sitting Family Court Judges. This, then is not a critique of any one particular decision. Rather, we must acknowledge that the overburdened judicial system may no longer be able to serve “the best interests of the children.” In fact, the court system itself may be hurting our children far more than any decision.
After four years of litigation, including the year needed to obtain this decision, the Appellate Division, Second Department, in Matter of Dana H. v. James Y., sentenced the Y.-family children to another two years of court fights . . . . unless their parents can get their act together.
James Y. and Dana Y. H. (now-remarried) divorced in 2004. At that time they had agreed to share joint custody, with the mother having primary physical custody. However, the mother relocated with the children to South Carolina without the permission of either the father or the Family Court.
As a result of the mother’s relocation, physical custody was transferred to the father. He moved with the children to live with his mother.
Both parties then petitioned the Family Court for sole custody of the children, with the mother also finally seeking for permission to relocate the children to live with her and her new husband in South Carolina.
After a trial conducted over the span of a year, Nassau County Family Court Judge Conrad Singer by his June 23, 2008 order determined that the mother would be awarded sole custody of the children, provided that within six months she returned to live in New York.
On the other hand, if the mother refused to return to New York, it would be the father who would have physical custody of the children, but the mother would have final decision-making authority concerning the children’s welfare, education, medical, and mental health issues, except in the event of an emergency.
Ms. H., indeed, elected not to relocate to New York.Continue Reading Has the Court System Failed the Y. Children?
In an effort to help parents in high-conflict decision-making disputes, New York courts are now appointing “Parenting Coordinators.”
Professor Andrew Schepard of the Hofstra University School of Law in his article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”
In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.
New York’s 8th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:
Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children’s needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.
The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.
New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.
New York’s judiciary securely guards its exclusive power to make custody and visitation decisions. Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:
Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.
Continue Reading Are Parenting Coordinators Too Little, Too Late in Custody and Visitation Disputes?