Best Interests

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Is resolving a disagreement between parents as to whether to vaccinate a child against Covid too “political” to be decided? Three recent decisions tackle this issue. The Court may shield itself from making the bottom-line decision by deciding which parent should decide.

Should deciding who will be the decision-maker be the rule when parents disagree; or should parents be able to turn to the courts for the answer to one question without changing how they will make decisions on other questions in the future?

In other contexts, judges have been tasked with making literal life-and-death decisions. On occasion, they must decide whether to override the parents’ decision to discontinue life-sustaining treatment of their terminally ill minor child. See, Matter of DH,  15 Misc. 3d 565, 834 N.Y.S.2d 623 (Sup. Ct. Nassau Co. 2007). In Matter of Matthew V. (Lynette G.), 59 Misc. 3d 288, 68 N.Y.S.3d 796 (Fam. Ct. Kings Co. 2017), the Court transferred decision-making authority from the mother of a 14-year-old child to the child services agency for the purpose of consenting to chemotherapy treatment to which the mother was opposed.

However, there seems to be a different approach to resolving parental conflicts because of the current political climate.Continue Reading To Vaccinate Or Not To Vaccinate — That Is The Question . . . But Will A Court Answer It?

Can a court order a parent to impose discipline on children who voluntarily refuse to engage in court-ordered visitation with the other parent? Yes, said Monroe County Supreme Court Justice Richard A. Dollinger in his September 18, 2020 opinion in Matthew A. v. Jennifer A., enforcing a separation agreement’s schedule. The parents had determined what was in their children’s best interests; it was the Court’s job to help them “drive the bus,” using the parents’ authority to impose discipline on children, as well as the Court’s contempt powers, to enforce that schedule.

The parties were the parents of three boys, 10, 12 and 14, who resided primarily with their mother under a separation agreement that was less than two years old. Because of the distance between the parents’ homes, the father’s agreed-upon one midweek dinner with the boys was not specified. However, the agreement provided that if the father moved closer to the mother’s home, such would constitute a substantial change in circumstances permitting the father to seek a modification.

A year after the divorce, the father did move closer to the mother’s home. The father filed a motion seeking to expanded his alternate weekend time with the children to include Sunday overnights. He also sought to hold the mother in contempt for her alleged failure to follow the original schedule. For her part, the mother filed her own visitation modification petition seeking fewer visitation hours alleging, “the children’s wishes have changed;” the children did not want to have any dinner visits with their father if they had organized activities after school.

At a preliminary appearance, Justice Dollinger warned the mother that he was ordering the mother to restrict the children’s privileges and access to extracurricular activities if the children continued to fail to attend visitation. Justice Dollinger warned that he could hold a residential parent in contempt if the parents failed to strictly enforce the disciplinary restrictions set forth in a court order.Continue Reading Making Mom Make the Kids Visit Dad

Children in balanceOn the night of August 24, 2013, the father received an email from the mother stating that she and the children had moved from East Hampton to Westhampton Beach—a distance of about 32 miles. Under their divorce settlement stipulation entered just 3 months earlier, it was agreed that the parties would share joint custody of their two children. The mother was to have residential custody of the children, subject to parenting time by the father from 4:00 p.m. to 6:00 p.m. on Mondays, Tuesdays, and Thursdays, from 4:00 p.m. to 7:30 p.m. on Wednesdays, and on alternate weekends (i.e., on 8 out of 11 days).

In September, 2013, the father moved to enjoin the mother from relocating. At the ensuing hearing, the father testified that he normally works from 8:00 a.m. until 4:00 p.m. on weekdays. He testified that it usually took him about five minutes after finishing work to drive to the former marital residence in East Hampton to pick up the children for visitation. He further testified that it now took him 50 minutes to drive from his home in East Hampton to the mother’s new home in Westhampton Beach.

The mother testified that she moved because she had voluntarily changed jobs from a bank located in Bridgehampton to a bank located in Medford, and that the move cut 30 minutes off her new commute in each direction. She testified that her total compensation at the new job was comparable to her total compensation at her old job. She further testified that she moved to be closer to her parents in Riverhead. She testified that the children saw her parents about twice a month when they lived in the former marital residence in East Hampton, and about once a week after the move to Westhampton Beach.

Sufflok County Supreme Court Justice Stephen M. Behar granted the father’s motion to enjoin the mother’s relocation. The mother appealed.Continue Reading Father’s Frequent Weekday Visitation Precludes Mother's 32-mile Relocation

When making a decision in custody matters, the primary concern is the best interests of the child. The courts may consider religion as one of the factors in determining the best interests of a child, but religion alone may not be the determinative factor. New York courts will consider religion in a custody dispute when…

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

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

we are moving with question mark flipped.jpgAs 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:

  • To what extent is the relocation a necessity?
  • To what extent has the relocating parent fostered the relationship between the child and the parent left behind?
  • To what extent has the parent left behind exercised rights of visitation and sacrificed to be involved in the life of the child?
  • To what extent will educational and other opportunities for the child be enhanced by the relocation?

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)

we are moving with question mark.jpgSeven 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)