You are here: / Family Law
,

FAMILY COURT’S FAILURE TO CONSIDER THE PSYCHOLOGICAL EVALUATIONS OF THE PARENTS BEFORE AWARDING SOLE CUSTODY TO FATHER REQUIRED REMITTAL (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the psychological evaluations should have been made before awarding sole custody of the child to father:

The mother’s mental and emotional health was the central issue contested in this proceeding, and we conclude that the court abused its discretion in making its determination and awarding the father sole custody of the child without first considering the results of the psychological evaluations that it ordered … . Although a psychological expert testified at the fact-finding hearing on behalf of the father, that expert interviewed the parties and the subject child to assess whether the child had been sexually abused, and therefore he did not provide much information on the mother’s emotional functioning, the impact her mental health issues had on [*2]her ability to parent the child, or the fitness of either parent. Thus, on this record, we cannot say that there was sufficient evidence for the court to resolve the custody dispute without considering the court-ordered psychological examinations of the parents … . Matter of Pontillo v Johnson-Kosiorek, 2021 NY Slip Op 04455, Fourth Dept 7-16-21

 

PETITIONER’S OBJECTION TO THE SUPPORT MAGISTRATE’S ORDER SHOULD NOT HAVE BEEN DENIED; THE CSSA APPLIES EVEN WHEN THE CHILD RECEIVES PUBLIC ASSISTANCE; DOWNWARD DEVIATION FROM THE PRESUMPTIVE SUPPORT LEVEL IMPROPERLY APPLIED THE PROPORTIONAL OFFSET METHOD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined petitioner’s objections to the Support Magistrate’s order should not have been denied:

It is well settled that “the CSSA [Child Support Standards Act] must be applied to all child support orders, regardless of a child’s receipt of public assistance” … . Here, the Support Magistrate purported to reduce the father’s obligation pursuant to Family Court Act § 413 (1) (f) (10) because the father made additional expenditures to maintain his house to permit the child to stay there during the time that he stayed with the father. Such a reduction for extended visitation is permitted by section 413 (1) (f) (9), however, and that subdivision of the statute applies only where “the child is not on public assistance” … . Furthermore, we have previously stated that a determination to grant a downward deviation from the presumptive support obligation on the ground that the noncustodial parent incurred expenses while the child was in his or her care ” ‘was merely another way of [improperly] applying the proportional offset method’ ” … , and the proportional offset method of calculating child support has been explicitly rejected by the Court of Appeals … . Matter of Livingston County Dept. of Social Servs. v Hyde, 2021 NY Slip Op 04316, Fourth Dept 7-9-21

 

,

MOTHER VIOLATED A COURT ORDER BY RELOCATING TO ARIZONA WITH THE CHILD; HOWEVER, HER ALLEGATIONS OF DOMESTIC ABUSE BY FATHER WERE CREDIBLE AND WARRANTED GRANTING HER CROSS PETITION TO RELOCATE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, determined mother’s cross petition to relocate with the child was properly granted, despite mother’s violation of a court order prohibiting her from permanently leaving Monroe County with the child without father’s consent, or without a court order allowing relocation. Mother testified that father was abusive and she feared for her life at times. Father denied all allegation of abuse. Family Court found mother’s testimony credible and did not credit father’s testimony:

Courts place considerable weight on the effect of domestic violence on the child … , particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety … , or where the father minimized the past incidents of domestic violence … . Indeed, where domestic violence is alleged in a petition for custody, “the court must consider the effect of such domestic violence upon the best interests of the child” … .

… [T]he court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother “did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence” … . Although the court did not countenance the mother’s decision to relocate without permission, “it was the father’s [violent] conduct that prompted [her] move to [Arizona] in the first instance and triggered the resulting disruption of his relationship with his daughter” … . Furthermore, although the court did not expressly engage in the analysis required under Tropea (87 NY2d at 740-741), according deference to the court’s factual findings and credibility assessments … we conclude that “there is a sound and substantial basis in the record supporting the court’s determination that ‘relocation would enhance the child[‘s life] economically, emotionally, and educationally, and that the child[‘s] relationship with the father could be preserved through a liberal parental access schedule including, but not limited to, frequent communication and extended summer and holiday visits’ ” … . Matter of Edwards v Ferris, 2021 NY Slip Op 04306, Fourth Dept 7-9-21

 

,

THE JUDGE SHOULD NOT HAVE DELEGATED THE AUTHORITY TO DETERMINE FATHER’S PARENTAL ACCESS TO THE PETITIONER, THE DECEASED MOTHER’S COUSIN, IN THIS GUARDIANSHIP CASE (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, noted that a judge cannot delegate the authority to determine father’s parental access, here the mother’s cousin petitioned to become the child’s guardian:

… “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . In this case, the Family Court improperly delegated the determination of the father’s parental access to the petitioner. Accordingly, we remit the matter to the Family Court, Suffolk County, to expeditiously establish an appropriate schedule for the father’s parental access in accordance with the best interests of the child … . Matter of Madelyn E. P. (Christine L.-B.–Kevin O.), 2021 NY Slip Op 04228, Second Dept 7-7-21

 

,

THE SEPARATION AGREEMENT WAS NOT UNCONSCIONABLE, BUT THERE WAS A QUESTION WHETHER THE AGREEMENT WAS THE PRODUCT OF OVERREACHING, HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the separation agreement was not unconscionable, there were questions of fact whether the agreement was the product of overreaching requiring a hearing:

While the defendant waived the right to maintenance, this provision, by itself, is insufficient to render the agreement unconscionable … .

Nevertheless, the Supreme Court should have held a hearing on the issue of whether the agreement should be set aside on the ground of overreaching. “Although courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching, the general rule is that if the execution of the agreement is fair, no further inquiry will be made” … . No actual fraud needs to be shown in order to set aside an agreement, but “the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception” … .

Here, the agreement reflects a vast disparity between the parties’ assets at the time of its execution. Moreover, the defendant’s submissions suggest that the plaintiff may have unilaterally selected and paid the defendant’s attorney, and that negotiations between the parties’ attorneys went on for approximately six weeks prior to the defendant’s initial consultation with her attorney. Marinakis v Marinakis, 2021 NY Slip Op 04218, Second Dept 7-7-21

 

,

FAMILY COURT SHOULD NOT HAVE DELEGATED TO FATHER ITS AUTHORITY TO SUPERVISE MOTHER’S PARENTING TIME AND TELEPHONE AND ELECTRONIC CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department determined Family Court should not have delegated to father its authority to supervise mother’s parenting time and telephone and electronic contact:

Family Court improperly delegated its authority over the mother’s supervised parenting time and telephone and electronic contact with the children to the father. “Unless [parenting time] is inimical to the children’s welfare, the court is required to structure a schedule which results in frequent and regular access by the noncustodial parent. In so doing, the court cannot delegate its authority to determine [parenting time] to either a parent or a child” … . Family Court ordered that the mother’s supervised parenting time “shall be arranged as to time, place, circumstances and supervisor as determined by the [f]ather” and that the mother shall have telephone, Facetime and/or other similar contact with the children “as permitted by the [f]ather.”

Although the father has sole custody of the children and, in such capacity, has discretion in the selection of an appropriate supervisor, Family Court failed to provide parameters with respect to the frequency of the supervised parenting time to which the mother is entitled and … failed to consider the logistical concerns in ensuring that she has frequent and regular access to the children … . Matter of Jessica HH. v Sean HH., 2021 NY Slip Op 04165, Third Dept 7-1-21

 

,

ALTHOUGH IT WAS A VERY CLOSE CASE, THE EVIDENCE DID NOT SUPPORT A CHANGE IN CUSTODY SUCH THAT THE COUPLE’S SON, WHO HAS BEEN DIAGNOSED WITH AUTISM, WOULD RELOCATE WITH FATHER TO MASSACHUSETTS, DESPITE FATHER’S BEING MORE FINANCIALLY SECURE THAN MOTHER; FAMILY COURT DID NOT GIVE PROPER WEIGHT TO THE SON’S WISHES (THIRD DEPT).

The Third Department, reversing Family Court, determined, in a very close case where both parents love and want the best for their children (who have been diagnosed with autism), father did not demonstrate a sound basis for modifying the custody arrangement to allow relocation with his son to Massachusetts:

… [I]t is clear that the son is very strongly bonded to the mother. Indeed, he has lived with the mother for the last six years since the father moved to Massachusetts, except for short periods of visitation with the father. Moreover, the son has had very little visitation with the father since the 2019 holiday season due largely to the COVID-19 pandemic. Additionally, although the father cites the living conditions at the mother’s home as the motivation for initially seeking custody, we find this questionable given that he testified that the condition of the mother’s home has long been problematic and that, despite this, he relocated to Massachusetts and left both children in her care. Although … issues with the hot water heater were no doubt problematic, that matter was remedied prior to trial. Even more troubling, however, is the father’s strong opposition to the son changing schools because the son has difficulty with change, yet he feels it is in the son’s best interests to relocate him to Massachusetts away from the mother and the life he has established with her. Although relocation would certainly enhance the son’s life, as his living conditions would improve due to the father being more financially secure, this is only one factor in our analysis … . Finally, although not dispositive, given the advanced age of the son [born 2005], as well as testimony regarding how intelligent he is, we find that Family Court did not give proper weight to his wishes … . Matter of Daniel G. v Marie H., 2021 NY Slip Op 04178, Third Dept 7-1-21

 

MOTHER’S REFUSING TO SIGN MEDICAL CONSENT FORMS FOR PSYCHIATRIC TREATMENT OF HER CHILD DID NOT CONSTITUTE NEGLECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Administration for Children’s Services (ACS) did not demonstrate mother had neglected the child by refusing to sign medical consent forms which resulted in the child being discharged from the psychiatric care at the Richmond University Medical Center (RUMC):

ACS failed to establish by a preponderance of the evidence that the mother neglected the child. ACS did not establish that the mother’s failure to sign the admissions paperwork for the child’s stay at RUMC, or her failure to consent to the child being given a drug known as Risperdal, impaired, or caused imminent risk of impairment of, the child’s physical, mental, or emotional condition. Contrary to the allegation in the petition, the child’s medical records showed that she was discharged from RUMC because her condition had stabilized and she did not appear to be a threat to herself or others. Moreover, the mother agreed with the recommendation that the child receive follow-up outpatient care, and at the time that the child was discharged, the mother had two such appointments scheduled. As to the mother’s failure to consent to the child being given Risperdal, the medical records showed that, despite not being given this medication, the child’s condition stabilized during her hospitalization such that she was able to be released safely for outpatient treatment. ACS presented no evidence that outpatient treatment without the use of Risperdal was not “an acceptable course of treatment in light of all of the surrounding circumstances” … . Matter of Nabil H. A. (Vinda F.), 2021 NY Slip Op 04129, Second Dept 6-30-21

 

, , ,

PETITIONER WAS ENTITLED TO A HEARING ON A TEMPORARY ORDER OF PROTECTION (TOP) WHICH BARRED HER FROM HER OWN APARTMENT WHERE HER CHILDREN LIVED; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, reversing Criminal Court, determined the mandamus action against  a Criminal Court judge seeking a hearing on a temporary order of protection (TOP) should have been granted. The First Department found that the matter qualified as an exception to the mootness doctrine and heard the appeal despite the dismissal of the underlying criminal action. Petitioner was charged with assaulting a man with whom she lived in her apartment. The TOP barred her from her own apartment where her children resided:

We find that the Criminal Court’s initial failure to hold an evidentiary hearing in accordance with petitioner’s due process rights after being informed that petitioner might suffer the deprivation of a significant liberty or property interest upon issuance of the TOP falls within the exception to the mootness doctrine: “(1)[there is] a likelihood of repetition, either between the parties or among other members of the public; (2) [it involves] a phenomenon typically evading review; and (3) [there is] a showing of significant or important questions not previously passed on, i.e., substantial and novel issues” … . Matter of Crawford v Ally, 2021 NY Slip Op 04082, First Dept 6-24-21

 

, ,

THE HARASSMENT-RELATED SPEECH PROHIBITIONS IN THE ORDER OF PROTECTION DID NOT VIOLATE THE FIRST AMENDMENT BUT THE PROVISION PROHIBITING RESPONDENT FROM DISCSUSSING THE PETITIONER OR THE FAMILY OFFENSE PROCEEDING WAS STRUCK FROM THE ORDER OF PROTECTION AS UNNECESSARY (FIRST DEPT).

The First Department affirmed the finding respondent committed the family offense of harassment by sending email about petitioner’s personal matters to 53 people. Although the harassment prohibitions in the order of protection did not violate the Firs Amendment, the provision in the order of protection which prohibited respondent from discussing the petitioner or the proceedings was struck as unnecessary:

Respondent contends that the provision of the order prohibiting him from discussing petitioner or the case with anyone familiar with petitioner violated his First Amendment right to freedom of speech. To be sure, respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages is not protected by the First Amendment, because those repeated and unwanted communications serve no legitimate purpose … . However, because the harassment is adequately addressed by the provision that respondent stay away from petitioner and not contact her, we delete the prohibition against his discussing petitioner or the proceeding … . Matter of Sophia M. v James M., 2021 NY Slip Op 03992, First Dept 6-22-21

 

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