Child CustodyThe court-appointed Attorney for the Children may object to and appeal from a custody order entered upon the consent of the parents. So held the Appellate Division, Second Departrment, in its June 26, 2015 decision in Velez v. Alverez, reversing the order of Westchester County Family Court Judge Robert C. Cerrato.

The mother and the father filed custody cross-petitions in Family Court. Over the objection of the Attorney for the Children, the order appealed from was entered upon the consent of the parents, embodying the terms of the parents’ settlement agreement.

On appeal, the attorney for the children contended that the Judge Cerrato approved the agreement without having sufficient information to enable it to render an informed determination as to whether the terms of the agreement were in the best interests of the subject children.

Contrary to the father’s contention, the attorney for the children was empowered to appeal from that order.

As a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed.

The Second Department did note, however, that a hearing may not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest.

However, here, the Second Department held that the Family Court did not possess sufficient information to enable it to render an informed and provident determination as to the best interests of the children.

Accordingly, the matter was remitted to the Family Court for an evidentiary hearing on the issues of physical custody and visitation, including in camera interviews of the children and a new determination thereafter of the petitions. The appellate court also ordered that forensic evaluations of the parents and children precede that hearing. In the interim, and until further order of the Family Court, the provisions of the consent order will remain in effect.

Dawn M. Shammas, Esq., of Harrison, served as attorney for the children. Maria J. Frank, Esq., of Yorktown Heights, represented the mother. Evelyn K. Isaac, Esq., of Hastings-on-Hudson, represented the father.

Pets should be recognized as a “special category of property,” according to Albany County Supreme Court Justice Michael C. Lynch in his February 19, 2014 decision in Hennet v. Allan. As a result, he ordered a hearing to determine which member of this broken-up couple would be awarded sole possession of “Duke,” their black Labrador retriever.

The parties, Alisha and William, were involved in a non-marital relationship for over fifteen years, living together for the last four at their Altamont residence. Alisha commenced this replevin action seeking to recover possession of Duke. William had taken Duke from the residence on August 1, 2013, more than four months after he moved out on March 22, 2013.

Duke had been purchased in September, 2009. While there was a dispute as to which party purchased the dog, Duke’s title and registration had been placed in their joint names.

On July 23, 2013, Alisha refinanced the parties’ residence. At that time, William had deeded over his interest and signed an acknowledged release:

I, William Allan, Jr., waive any and all rights and titles to the [Altamont] property . . . along with any and all materials and possessions located therein.

As of today, July 23, 2013, I William Allan, Jr., have removed all personal property from above said property and forever relinquish rights and claims anything left behind. All personal property remaining at above said residence is therefore sole and exclusive property of Alisha Hennet.

The only issue before the Court was a determination of the parties’ respective claims to Duke. Alisha maintained that since William admitted Duke had resided at the residence on July 23, 2013, he lost any claim to Duke under the terms of the release. In opposition, William maintained that he only signed the release as part of the refinancing closing, being expressly advised that “the Release Agreement had nothing to do with my personal property and was required in order to transfer my interest in the real property only.”

Justice Lynch rejected William’s attack on the release. The express terms of the release contradicted William’s suggested limitation of the personal property to which it applied. William’s acknowledged reading of its express terms negated any claim of a plausible reliance on Alisha’s purported misrepresentation.

However, Justice Lynch held that Duke was not covered by the release. Duke was not mere personal property. Although dogs, traditionally, have been defined as “personal property,” the recent trend, however, has been to treat companion dogs as more than just property.

Justice Lynch discussed Justice Cooper’s “thoughtful and careful analysis” recently in Travis v. Murray, the subject of my December 9, 2013 blog post. Justice Cooper had concluded that a strict property analysis should not be used to resolve a dispute between divorcing spouses over possession of their dachshund, instead opting to apply a “best for all concerned” standard, rejecting the application of a “best interests” custody standard as unworkable.

[It is suggested that Justice Cooper probably went further than he had to. As a court has the power to equitably distribute a divorcing couple’s property, and to determine questions of possession, it was not necessary to expand the notion of property to craft relief. Here, as the parties had not been married, they were not entitled to the benefits of the Domestic Relations Law.]

Justice Lynch noted:

Courts are essentially at a crossroads in determining whether a strict property analysis should still govern disputes between dog owners. . . .

Today, we should take the next step in recognizing that pets are more than just “personal property” when it comes to resolving a dispute between owners.

He concluded that the reference to “personal property” in the release did not extend to Duke.

Certainly, the attachment each party professes to have with Duke would only be consistent with recognizing that Duke falls within a “special category of property” that is simply not covered by the release.

In the absence of conclusive documentary proof, the Court ordered that a hearing be held to determine which party should be awarded sole possession of Duke. The Court stated that it would review the circumstances as to how Duke was acquired and cared for, and the actual arrangement between the parties for spending time with Duke after defendant left the parties’ residence.

The significant strain on the parties and the judicial system created by this dispute warranted a final resolution now, without the prospect of ongoing litigation involving compliance with a shared possession arrangement. Since both parties professed a strong relationship with Duke and extensive involvement in his care,  the Court was left with endeavoring to render a fair determination as to which party through his or her conduct has the most genuine right of possession.

Michael D. Assaf, of Assaf & Siegal, PLLC, of Albany, represented Ms. Hennet. F. Matthew Jackson, of O’Connell & Aronowitz, P.C., represented Mr. Allan.

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

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

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.

In Nusbaum v. Nusbaum, the parties in 2011 had entered a so-ordered stipulation of settlement of their divorce action under which they were to share joint legal custody of their then 14-year-old twins. The father was awarded residential custody, with the mother having unsupervised visitation.

Here, the father had moved to modify the provisions of that stipulation so as to award him sole legal custody of the children and to suspend the mother’s visitation with the children, unless supervised. The father alleged, among other things, that the mother had operated a motor vehicle while impaired, endangering the children. The father also sought an order directing the mother to attend and complete programs in drug and alcohol rehabilitation and anger management.

Pending the determination of the father’s motion, the parties agreed to certain supervised visitation. Moreover, pending his decision on the father’s application, Westchester County Supreme Court Justice John P. Colangelo, in effect, issued a temporary restraining order prohibiting the mother from operating a motor vehicle with the children as passengers.

Ultimately, in an October 23, 2012 order, Justice Colangelo denied the father’s application without holding a hearing.

The father appealed. On December 17, 2012, the Second Department stayed enforcement of the order denying the father’s motion pending the determination of his appeal. The mother’s visitation with the children was limited to visits on two days per week, two hours per day, and the mother was prohibited from operating a motor vehicle with the children as passengers.

Deciding the appeal May 8, 2013 decision, the Second Department held that the father had satisfied his burden to show a subsequent change of circumstances so that modification may be required to protect the best interests of the children. Moreover, the appellate court held, it did not appear that Justice Colangelo possessed adequate relevant information to enable him to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary.

Accordingly, the father’s motion should not have been denied without first conducting a full evidentiary hearing to ascertain the children’s best interests. The Second Department sent the case back for such a hearing. Moreover, the Second Department again directed that in the interim, and until further order of the Supreme Court, the mother’s visitation was to be limited to two days per week, two hours per day, with the mother prohibited from operating a motor vehicle with the children as passengers.

Joseph J.A. Tringali, Sr., of counsel to Lawrence G. Nusbaum, Jr., of New Rochelle, represented the father. Donna E. Arams of Harold, Salant, Strassfield & Spielberg, of White Plains, represented the mother.