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.
On March 13, 2014, the Third Department in Sonley v. Sonley, affirmed the order of Warren County Family Court Judge J. Timothy Breen modifying joint custody to award sole custody to the mother.
In Sonley, the parties were the separated parents of three children (born in 2005, 2007 and 2008). Pursuant to a 2011 stipulated order, the parties shared joint legal custody and equal parenting time with the children.
In January 2012, the father commenced the first of several proceedings seeking primary physical custody of the children. The mother opposed the father’s application and filed a series of cross-petitions seeking sole legal and physical custody. Thereafter, the father filed a petition alleging that the mother had violated various provisions of the custody order.
Following a trial, Judge Breen awarded the mother sole legal and physical custody of the children. Judge Breen also noted that although the mother had violated the custody order by not allowing the children to speak with the father on the telephone on certain occasions and by having the children’s maternal grandmother present during some of the custody exchanges, the violations were not willful given what the court characterized as the father’s malicious behavior towards her.
The Third Department held that the mother satisfied her burden to demonstrate a sufficient change in circumstances since the entry of the prior joint custody order to warrant a modification in the child[ren]’s best interests.
This change in circumstances, in turn, can be established where the relationship between the joint custodial parents deteriorates to the point where they simply cannot work together in a cooperative fashion for the good of their children.
As the record reflected that the parties’ relationship had become antagonistic and uncivil to the point where they were unable to effectuate joint custody, that order was properly modified.
Similarly, in Irizarry v. Irizarry the Second Department on March 26, 2014 modified the decision of Queens County Supreme Court Justice Pam Jackman-Brown to award joint custody. The Second Department found that in light of the nature of the parties’ relationship and their inability to put aside their differences for the good of the child, joint legal custody could only “enhance family chaos.” The appellate court found that an award of sole legal custody to the mother was in the best interests of the child. However, the provision of Justice Jackman-Brown’s order providing that each parent shall have full and unimpeded access to the child’s school and medical information, as well as contact with teachers, caregivers, and providers, and treating physicians and therapists, would remain in effect.
In Michael B. v. Dolores C., the First Department on March 5, 2014, upheld the determination of Family Court, Bronx County Referee Annette Louise Guarino that had granted a father’s application to modify a prior joint custody order and award him sole legal and physical custody. Here, the parties were unable to reach a consensus on issues related to the child and the mother ignored a directive to keep the father informed of “all major issues regarding [the child’s] health, education and welfare.” Among other things, the mother removed the child from the school in which he was enrolled without consulting the father. Joint custody was inappropriate, and the award to the father was in in the child’s best interests.
Danielle R. Petitti, of Fersch Petitti LLC, of Manhattan represented the father. Joseph V. Moliterno, Scarsdale, represented the mother. Melanie T. West, of counsel to with Karen P. Simmons, of The Children’s Law Center, of Brooklyn, was attorney for the child.
In Johanys M., Steven N. Feinman, of White Plains, represented the father. The Law Offices of Randall S. Carmel, of Syosset, represented the mother.
In Sonley, Jessica C. Eggleston, of Saratoga Springs, represented the father. William J. Nealon III, of Glens Falls, represented the mother. Edwin M. Adeson, of Glens Falls, was attorney for the
In Irizarry, Ade Fasanya (now a Family Court Judge), then of Cheng & Fasanya, LLP, of Rosedale, represented the mother. Steven P. Forbes, of Jamaica, was attorney for the child.
In Boyce, Margery A. Greenberg , of Segal & Greenberg LLP, of Manhattan, represented the mother. Barry R. Abbott, of Mayerson Abramowitz & Kahn, LLP, of Manhattan, represented the father.