It has been said that the court system is broken; its resources stretched to a point where its purposes cannot be achieved.

Take this month’s decision of the Appellate Division, Second Department, in Middleton v. Stringham.

On June 22, 2011, the parties agreed to share joint legal custody of their two children, with physical custody to the mother and liberal parenting time to the father. The parties were divorced by a judgment of divorce entered January 10, 2012. Seven months later, the mother filed a petition to modify the stipulation so as to award her sole legal and physical custody of the children, and the father cross-petitioned for the same relief. After a hearing at which the parties and two of their parent coordinators testified, Westchester County Family Court Judge David Klein modified the stipulation so as to award the father sole legal and physical custody of the subject children.

Generally, on a petition for a modification of joint custody, a court is required to determine whether the parents’ interaction was so acrimonious that it effectively precluded them from joint decision-making, and if so, to award sole custody to whichever parent serves the best interests of the children. Here, however, the Second Department held that the determination that it was in the best interests of the children to award sole custody to the father lacked a sound and substantial basis in the record.

The custody hearing concluded on May 15, 2014, over 20 months after the mother’s  petition was filed, and the order appealed from was issued 6 months after that.

For the most part, the evidence at the hearing focused upon allegations, events, and circumstances relating to the period of time that preceded the filing of the petition and cross petition, and the parents’ acrimonious relationship with each other, with limited evidence about the children’s more current circumstances and best interests. Accordingly, the appellate court found that a new hearing was needed to allow the court to elicit more up-to-date evidence.

Moreover, the Second Department noted that under the unique facts of the case (not discussed), and despite the children’s relatively young ages, the court should have conducted in camera interviews with the children.

The Second Department directed that the new hearing, in camera interviews, and new determination should be done with “all convenient speed.”

The parties have now been litigating for the three years that followed the one-year respite after they settled their custody dispute the first time. These cross-proceedings took so long that the reasons there were brought were no longer relevant. Instead, the appellate court wanted to know what had been going on while the Family Court proceeding was ongoing. Even with  “all convenient speed,” the resolution (with appeal) will take another year or two.

From the children’s perspective, it must seem like their entire lives have been spent with the sights and sounds coming from the court-system battleground. We owe them better.

William J. Larkin III, Esq., of Larkin, Ingrassia & Brown, LLP, of Newburgh, represented the mother. Neal D. Futerfas, Esq., of White Plains, N.Y., represented the father. Joy S. Joseph, Esq., of White Plains, N.Y., served as attorney for the children.

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.

In five cases decided May 1, 2013, the Second Department continued to voice its concern when parents just don’t get along. Again, the court considered joint custody, hampering the child’s relationship with the other parent, private interviews of children by the judge, contempt for violations of visitation orders, and whether a non-parent may be granted custody over a surviving parent.

In Wright v. Kaura, the Second Department reversed a joint legal custody award to grant sole legal custody to a mother.  The appellate court noted that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion.

Here, joint legal custody was inappropriate as the parties demonstrated an inability to cooperate on matters concerning the child. The record was replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child. Thus, Acting Westchester Family Court Judge Thomas R. Daly erred when awarding the parties joint legal custody of their child.

In Lawlor v. Eder, the Second Department held that a father’s refusal to encourage and foster meaningful contact between the child and the mother was the basis to award residential  custody to the mother, although the parents shared joint legal custody.

A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.

Continue Reading Custody Issues Considered in Five Second Department Cases Decided May 1st