You are here: / / HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT...
, , ,

HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT AT THE CLOSE OF MOTHER’S PROOF; AT THAT STAGE OF THE PROCEEDINGS THE COURT MUST ACCEPT PETITIONER’S EVIDENCE AS TRUE AND RESOLVE ALL CREDIBILITY QUESTIONS IN PETITIONER’S FAVOR; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

he Third Department, reversing Family Court’s dismissal of mother’s petition to modify child support, determined that the judge applied the wrong standard when deciding father’s motion to dismiss at the close of mother’s proof. At that stage the judge must accept petitioner’s evidence as true, and must resolve all credibility issues in petitioner’s favor. The judge’s comments on witness credibility indicated the correct standard was not applied:

A noncustodial parent’s statutory duty to support his or her child until they reach 21 years of age may be suspended where the noncustodial parent establishes that the custodial parent has wrongfully interfered with or withheld visitation rights … . Although the parent seeking such suspension must ultimately demonstrate “deliberate frustration” or “active interference” with their visitation rights by a “preponderance of the evidence” … , where, as here, “Family Court is tasked with deciding a motion to dismiss at the close of the petitioner’s proof, the court must accept the petitioner’s evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner’s favor” … . * * *

Family Court’s commentary on witness credibility in resolving the subject motion to dismiss suggests to this Court that an incorrect legal standard was applied … . When viewed in the proper light, we find that the … proof was sufficient to withstand a motion to dismiss …  Thus, without passing judgment upon the ultimate success of the mother’s claim, we reverse. Matter of Crystal NN. v Joshua OO, 2025 NY Slip Op 03368, Third Dept 6-5-25

Practice Point: In this modification of child support proceeding, father moved to dismiss mother’s petition at the close of mother’s proof. In evaluating the motion at that stage of the proceedings, the court must accept all of petitioner’s evidence as true, afford the petitioner all favorable inferences from the evidence, and resolve all credibility issues in petitioner’s favor. The failure to apply those standards to consideration of the motion to dismiss requires reversal.

 

You might also like
DEFENDANT’S WAIVER OF APPEAL WAS INVALID; BASED UPON DEFENDANT’S STATEMENTS AT SENTENCING, THE JUDGE SHOULD HAVE INQUIRED ABOUT WHETHER DEFENDANT WISHED TO WITHDRAW HIS PLEA (THIRD DEPT). ​
An “Intimate Relationship” Within the Meaning of Family Court Act 812 Does Not Necessarily Involve Sexual Intimacy
FATHER PROPERLY FOUND TO HAVE SEVERELY ABUSED ALL THE CHILDREN IN THE HOME; DESPITE THE WORDING OF THE SEVERE ABUSE STATUTE, WHICH USES THE TERM “PARENT,” THE COVERAGE OF THE STATUTE IS NOT LIMITED TO BIOLOGICAL CHILDREN (THIRD DEPT).
Failure to Determine if Witness Would Testify Required New Hearing
Family Court Properly Issued an Order of Protection Against the 13-Year-Old Respondent In Favor of Petitioner’s 13-Year-Old Daughter Pursuant to Family Court Act 812—Respondent and Daughter Had Been Boyfriend-Girlfriend and Had Been Intimate But They Were Not Members of the Same Family or Household and Never Lived Together—Respondent Fit Within the Expanded Definition of “Member of the Same Family or Household” As the Phrase Is Used In Family Court Act 812, Thereby Providing Family Court with Jurisdiction Over the Proceedings
GENERAL BUSINESS LAW 349 CAUSE OF ACTION AGAINST A WORKERS’ COMPENSATION LAW TRUST SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).
Nail and Mail Service Not Valid—Not Calculated to Give Timely Notice of Order to Show Cause Challenging an Independent Nominating Petition
Detention by Immigration Officials Did Not Disqualify Claimant from Receiving Workers’ Compensation Benefits

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

AN ADMINISTRATIVE PROCEEDING WAS BROUGHT BY THE UNIVERSITY AGAINST PETITIONER-STUDENT... MOTHER’S BOYFRIEND, WHO LIVED WITH MOTHER AND DAUGHTER FOR FIVE MONTHS...