Three appellate decisions published the last week in October provide a primer on awards of custody to non-parents.
Continue Reading Grandparent and Non-Parent Custody Requires Both Extraordinary Circumstances and the Best Interests of the Child
Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child
Shlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year. The year after that they entered a stipulation of settlement to resolve their divorce action.
Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.
Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes). Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.
In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.Continue Reading Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child
Relocation to California Denied Mother with 12-year Old Daughter
The May 5, 2011 decision of the Appellate Division Third Department in Munson v. Fanning, highlights the need for difficult discussions and prioritization before taking life-altering steps. It is also another call for the expanded use of the Collaborative Law Process.
In this case, the parties’ 12-year old daughter had been born after her parents had separated and divorced. The mother sought and permission to move with the child to California to join her new husband who had taken a new job. Saratoga Family Court Judge Courtenay W. Hall denied that relief, but revised the father’s visitation schedule to allow the mother to join her husband for extended periods during school recesses.
The appellate court reviewed whether the mother met her burden of proving by a preponderance of the credible evidence that the relocation was in the child’s best interests. Quoting the 1996 landmark decision of the Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, the court stated:
The factors to be considered in making such a determination include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.”
The court recognized the healthy relationship the daughter developed the mother’s new husband, as well as her other children, all of whom were to reside in California. The step-father’s new job in California would allow her to stay at home and raise her children. The attorney for the daughter (formerly called the Law Guardian) supported the relocation.Continue Reading Relocation to California Denied Mother with 12-year Old Daughter
Changing the Name of the Child of Divorced or Unwed Parents
There is perhaps no greater opportunity for courts to state their philosophies or to become instruments of social change than in cases involving the surnames of children of divorced and unmarried parents.
Take the March 29, 2011 Second Department case of Matter of Eberhardt. In that case, Mariah, the now nine-year-old daughter of Michelle Esquenazi and John Eberhardt, was born out of wedlock. At the time of her birth, Mariah’s parents had been in a committed relationship and for a number of years and lived together with the mother’s three children from a prior marriage. Mariah’s birth certificate reflected the sole surname of her father. The father had acknowledged paternity. The parties’ intended wedding never took place. Approximately 1½ years after the child’s birth the father moved out. The mother maintained physical and legal custody, and the father visited regularly in accordance with an arrangement sanctioned by the Family Court.
In 2008, Ms. Esquenazi petitioned to change the child’s surname to Esquenazi-Erberhardt. Nassau County Supreme Court Justice Karen Murphy conducted a hearing at which the parties disputed the extent to which the father had been made aware that the child had been using the hyphenated surnames since age 2, and the extent of his protests once the use was known. Justice Murphy denied the mother’s petition, crediting the father’s testimony. Justice Murphy found that the objections of the father, who was emotionally and financially a part of Mariah’s life, were reasonable. The name change, Justice Murphy ruled, benefited the mother, not the child. To rule otherwise would reward the mother for her self-help and her knowing violation of the proper procedures for a name change under Civil Rights Law §§60 through 63.
A Second Department panel of three women and one man reversed, holding the father’s objections were not reasonable. Rather, his objections were raised to teach the mother a lesson. Moreover, the benefits to the child would not be denied simply to punish the mother for her self-help. Distinguishing the cases in which a mother was seeking to change the child’s surname to that of the mother, eliminating the father’s surname, the Second Department disagreed with Justice Murphy, and held:
[T]he emotional and financial involvement of the father is not a bar to a change to hyphenated surnames.
Continue Reading Changing the Name of the Child of Divorced or Unwed Parents
Incarcerated Pedofile Teacher Granted Visitation With Conditions With 5-year Old Daughter
In a 3-2 decision, the Appellate Division, Third Department, in Culver v. Culver, affirmed that part of a Saratoga County Family Court decision of Judge Courtenay Hall which granted visitation to an incarcerated father with his 5-year old daughter.
The father, Christopher Culver, 35, a former Shenendehowa elementary school teacher, pleaded guilty in 2008
Judge Mandates a Trial to Obtain a No-Fault Divorce
In actions commenced on or after October 12, 2010, Domestic Relations Law §170(7) provides for granting a divorce where one party states under oath that “the relationship between husband and wife has broken down irretrievably for a period of at least six months . . . .”
It what may be the first decision to
Link Found Between Male Children of Divorce and Serious Consideration of Suicide
A large, nationally representative sample was used in a Canadian study to look for a link between parental divorce and suicidal ideation. The conclusion: even in the absence of other childhood stressors, men who had experienced parental divorce had twice the odds of having seriously considered suicide compared to men from intact families. When combined
Using Parenting-Time Calendars Will Avoid Years of Visitation Disputes
Howard v. Laird, a recent decision of New York’s Appellate Division, Second Department, highlights the usefulness of a parenting-time calendar when entering a divorce settlement.
In Howard, the appellate court had occasion to reverse an initial post-divorce Supreme Court decision in a visitation dispute, and to send the case back to the lower
Stereotypes and Prejudices which Shaped Custody Determinations are Demonstrably False
The November/December issue of Scientific American Mind magazine presents the article, What Makes a Good Parent? A growing body of research conducted over the past 50 years shows fairly clearly that some parenting practices produce better relationships between parent and child and happier, healthier, better functioning children.
A new study by the article’s author, Robert
False Accusations of Spousal Abuse in Custody Determinations
Last month, recognizing Domestic Violence Month, we reviewed the Second Department decision in Costigan v. Renner which affirmed the granting of custody to a father because of domestic violence by the mother. Indeed, since 1996, consideration of domestic violence has been mandated in custody and visitation cases. Section 240(1) of the Domestic Relations Law provides