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Custody Grant to Grandmother, Rather than Father, Okay

After mother had been found to have neglected her child, the Third Department, over a two-justice dissent, affirmed the grant of custody to grandmother, as opposed to father:

“It is fundamental that a biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an  extended period of  time  or other  extraordinary circumstances”….    The relevant factors to be considered in determining whether extraordinary circumstances exist include “‘the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role'”… .   It is the nonparent’s burden to establish extraordinary circumstances …and, when that burden is met, custody is determined based upon the child’s best interests…. Matter of Marcus CC v Erica BB…, 514433, 3rd Dept, 6-20-13

 

Family Court Did Not Have Sufficient Information to Terminate Father’s Visitation

In finding that Family Court did not have enough information to determine whether the termination of father’s visitation was in the child’s best interest, in part because the court did not talk to the child in camera, the Second Department wrote:

A court may modify a visitation order upon a showing of changed circumstances and that modification is in the best interests of the child…. “A noncustodial parent is entitled to meaningful visitation, and denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child”…. A trial court’s determination that the best interests of the child warrants termination of visitation will not be set aside unless it lacks a sound and substantial basis in the record…. “Although a child’s wishes are not determinative, his or her wishes, age, and maturity should be given considerable weight” … . “Generally, visitation should be decided after a full evidentiary hearing to determine the best interests of the children. However, a hearing is not necessary where the court possesses adequate relevant information to make an informed determination of the children’s best interests”….  Here, the Family Court did not possess adequate relevant information to determine whether the termination of the father’s visitation with the child was in the child’s best interest. For instance, although the attorney for the child indicated that the child, who was then 13 years old, did not wish to visit the father, the court failed to conduct an in camera examination of the child to ascertain the child’s views.  Matter of Zubizarreta v Hemminger, 2013 NY Slip Op 04617, 2nd Dept, 6-19-13

 

Refusal to Allow DSS Workers Into Apartment Did Not Constitute Neglect

The Second Department reversed Family Court’s neglect determination against father.  The sole basis for the neglect finding was father’s refusal to let DSS Emergency Services workers into his apartment, which, the father explained, was based upon his fear the workers were not who they claimed they were:  The Second Department wrote:

“To establish neglect pursuant to section 1012(f)(i)(B) of the Family Court Act, the petitioner must prove, by a preponderance of the evidence, that (1) the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and (2) the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship”…. Any determination that a child is a neglected child must be based on a preponderance of the evidence (see Family Ct Act § 1046;…).   Here, while the DSS properly sought access to Joshua under its order of supervision, it failed to prove at the fact-finding hearing by a preponderance of the evidence that the father neglected Joshua…. The evidence did not establish that Joshua’s physical, mental, or emotional condition was impaired, or was in imminent danger of becoming impaired, as a result of the father’s refusal to allow the DSS Emergency Services workers into his apartment. Moreover, the evidence established that the DSS Emergency Services workers found Joshua to be clean, healthy, and safe. Matter of Joshua J, 2013 NY Slip Op 04606, 2nd Dept, 6-19-13

 

Even though Mother Properly Awarded Custody, Father Should Have Been Awarded Decision-Making Authority Re: Education

In affirming Family Court’s award of sole custody to mother, the Second Department determined the father should have been awarded decision-making authority for the child’s education:

When joint custody is not possible because of the antagonistic relationship between the parties…, it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent…. The division of authority should be made in a manner intended to take advantage of the strengths and abilities of the noncustodial parent with respect to a particular dimension of child-rearing…. The Family Court’s determination that it would be in the child’s best interests to award the mother decision-making authority with respect to the child’s education is not supported by a sound and substantial basis in the record. The father researched educational options for the subject child at every stage of his schooling. Once the child started school and began receiving homework assignments, the father supervised his homework, took part in school-related activities, and remained involved with his schooling at every stage. The father contacted the child’s teachers regarding issues of concern. Jacobs v Young, 2013 NY Slip Op 04607, 2nd Dept, 6-19-13

 

Mother’s Parental Rights Terminated Because of Her Mental Retardation

The Fourth Department affirmed Family Court’s termination of mother’s parental rights based upon her mental retardation. Matter of Joseph A.T.P. (Julia P.), 472, 4th Dept, 6-14-13

 

 

Award of Primary Custody to Father Reversed

In reversing Family Court and awarding primary physical custody to the mother and visitation to the father, the Fourth Department, over a dissent, wrote:

We agree with the mother and the AFC that the mother met her burden of establishing a change of circumstances. Since the original custody trial, each party has remarried and has had two additional children who are younger than the subject child, and the father has two step-children who are older than the subject child. The evidence established that the child felt isolated in the father’s home and indicated a strong desire to live with the mother. While a 10-year- old child’s preference regarding the parent with which he or she would like to reside is not dispositive, it is a factor to consider in determining whether there has been a change in circumstances … . The evidence further established that the child’s anxiety with respect to living with the father has progressed to the point where he has expressed to others his thoughts of harming the father and the father’s family, which led the parties to agree that the child needs counseling.  Matter of Cole v Nofri, 302, 4th Dept, 6-14-13

 

Visitation with Imprisoned Father Terminated

In affirming Family Court’s termination of visitation with the imprisoned father, the Fourth Department explained the operative principles:

“An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child[’s] best interests” … .“[W]hile not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances”… .. Here, the evidence establishes that, since the entry of the prior order and as the child has matured, she has developed a strong desire not to visit the father. Additionally, Family Court credited the mother’s testimony that the father was using visitation time to attempt to reconcile with the mother rather than to interact with their child. Thus, we conclude that there has been a sufficient change of circumstances to warrant “ ‘an inquiry into whether the best interests of the [child] warranted a change in custody’… .  * * * We recognize that “[v]isitation with a noncustodial parent is presumed to be in a child’s best interests even when the parent is incarcerated”….  In order to rebut the presumption, the party opposing visitation must establish by a preponderance of the evidence “that under all the circumstances visitation [with the incarcerated parent] would be harmful to the child’s welfare” … .  Matter of Rulinsky v West, 233, 4th Dept, 6-14-13

 

Husband’s Dissipation of His Separate Property Was a Factor in Increasing Wife’s Maintenance and Equitable Distribution

The Third Department increased the wife’s maintenance and equitable distribution awards based in part upon finding the husband had wasted and dissipated assets that were concededly entirely his separate property.  He had purchased an apartment house in New York City prior to the marriage for $130,000 and sold it during the marriage for $6 million.  The Court determined the husband had grossly mismanaged the proceeds of the sale:

Imputing to the husband the substantial income that he would have earned had he not been so cavalier and wasteful in the manner in which he blatantly risked virtually all of his capital …, and affording the wife more time to prepare for and find suitable employment, we extend the wife’s maintenance award of $2,000 per month  for nine months  to a period of 24 months, for a total of $48,000.  We further modify the award of equitable distribution – taking into account the parties’ assets at the commencement of the action and the husband’s economic fault – to award the wife 50%, rather than 40%, of the appreciation in the value of the marital residence.  Owens v Owens, 514022, 3rd Dept, 6-13-13

 

Criteria for Award of Support for Education

The Second Department explained the criteria for the award of support for a child’s college education as follows:

“Unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory'”…. “Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child’s college education is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law § 240(1-b)(c)(7)’ …, and an award will be made only “as justice requires”‘”…. “[A] court must give due regard to the circumstances of the case and the respective parties, as well as both the best interests of the child and the requirements of justice” ….  Silverstein v Silverstein, 2013 NY Slip Op 04323, 2nd Dept, 6-12-13

 

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Family Court Should Have Granted Father’s Motion to Vacate a Fact-Finding Order

In an abuse and neglect proceeding, the Second Department reversed Family Court’s denial of father’s motion to vacate a fact-finding order after a hearing at which father was not present:

If a parent is not present, the court may proceed to hear a petition pursuant to Family Court Act article 10 if the child is represented by counsel (see Family Ct Act § 1042). However, a timely motion to vacate the resulting fact-finding order shall be granted upon an affidavit showing, inter alia, a potentially meritorious defense to the petition unless the court finds that the parent willfully refused to appear at the hearing….  Under the circumstances presented, the appellant adequately demonstrated that his failure to appear was not willful…. Moreover, the father demonstrated a potentially meritorious defense to the petitions …. Matter of Mark W, 2013 NY Slip Op 04347, 2nd Dept, 6-12-13

 

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