You are here: / Family Law
,

FATHER’S PETITION TO MODIFY CUSTODY TO ALLOW HIS RELOCATION TO NORTH CAROLINA SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition to modify custody to allow his relocation to North Carolina should not have been granted:

In its decision, the court considered the relevant Tropea factors but erred in applying those factors to the facts and circumstances in the case at bar. Contrary to the court’s determination, the father “failed to establish that the child’s life would be enhanced economically, emotionally and educationally by the proposed relocation” … . While the father established that he will enjoy greater economic job opportunities in North Carolina, those nominal financial gains will be negated by the greater cost of living in the area of North Carolina where he will be relocating. Additionally, as noted by the court, the father had unrealistic goals for housing in North Carolina. Notably, the father testified that he was presently paying monthly rent of $900 for a home in Olean, New York, but wanted to purchase a home in North Carolina for between $200,000 and $250,000. He acknowledged that he could not afford a home within that price range on his own and would need the financial assistance of family, his employer, and his fiancée. There is no evidence in the record, however, that anyone had committed to providing that needed assistance or had the financial ability to do so. The father also failed to establish that the child would receive a better education in North Carolina inasmuch as there is no evidence in the record comparing the schools in North Carolina to those in Olean, New York … . Furthermore, the father admitted that he had “zero” family living in North Carolina. On the other hand, the father’s mother currently lives in Olean, New York, and the father’s aunt lives nearby in Wellsville, New York. The maternal grandmother, great-grandmother and great-grandfather all live in Olean, New York. The father therefore failed to establish that he and the child would receive similar support residing in North Carolina … . In our view, the only factor that fully supported the father’s request for relocation was a “fresh start,” away from Olean, New York, where he and the mother struggled with an opiate addiction. That factor, standing alone, is insufficient to warrant relocation … . Gasdik v Winiarz, 2020 NY Slip Op 06918, Fourth Dept 11-20-20

 

,

MOTHER’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED; FAMILY COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s request for an adjournment:

… [T]he court abused its discretion in failing to grant her attorney’s request for an adjournment … . Under the unique circumstances of this case, i.e., that the court was aware of the mother’s history of mental illness, that this was the first request for an adjournment on the mother’s behalf, and that the child’s situation would remain unaltered if the adjournment had been granted, the court improperly denied the request for an adjournment … . In addition, we conclude that the court abused its discretion in failing to grant an adjournment because of the serious concerns about the mother’s competency to assist in her own defense, which raised an issue whether it was necessary for the court to continue the appointment of a guardian ad litem … . We therefore reverse the corrected order and remit the matter to Family Court for further proceedings on the petition. Matter of Hayden A. (Karen A.), 2020 NY Slip Op 06917, Fourth Dept 11-20-20

 

,

MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for a modification of custody to accommodate relocation should not have been dismissed without holding a hearing:

… [T]he mother alleged that she had specific employment advancement opportunities at her job in Monroe County, and “economic necessity . . . may present a particularly persuasive ground for permitting the proposed move” … . In addition, the mother alleged that the relocation would enhance the child’s extracurricular activities, a factor that may support a relocation … . In addition, the Attorney for the Child indicated that the child favored the relocation, another factor that may support a relocation petition … . Consequently, the petition sufficiently alleged that the relocation would be in the child’s best interests … , and the court erred in dismissing it on the ground that it did not. Finally, to the extent that the decision indicates that the court dismissed the petition on the ground that the mother failed to allege a sufficient change in circumstances, that was error … . Matter of Betts v Moore, 2020 NY Slip Op 06907, Fourth Dept 11-20-20

 

, ,

FATHER AND MOTHER SUBMITTED INADMISSIBLE EVIDENCE TO SUPPORT THEIR SUMMARY JUDGMENT MOTIONS ON THE ISSUE WHETHER THE CHILDREN WERE CONSTRUCTIVELY EMANCIPATED; FATHER’S MOTION FOR SUMMARY JUDGMENT ON HIS PETITION TO TERMINATE HIS CHILD SUPPORT OBLIGATIONS WAS PROPERLY DENIED BUT MOTHER’S PETITION FOR SUMMARY JUDGMENT DISMISSING FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s motion for summary judgment on his petition to terminate his child support obligations based on the children’s constructive emancipation was properly denied, and mother’s motion for summary judgment dismissing father’s petition should not have been granted. The basis for both rulings was the inadmissible evidence submitted by father and mother:

… [W]e conclude that the father did not meet his initial burden on his motion of establishing that their refusal to visit with him was unjustified … . Inasmuch as the father’s own submissions suggest that the subject children did not want to visit him due to their purported knowledge of the sex abuse allegations, his submissions failed to eliminate all material issues of fact … . Indeed, the father failed to establish that his behavior “was not a primary cause of the deterioration in his relationship with [the subject] children” … . Thus, we conclude that the court properly denied his motion.

We also conclude that the court should not have granted that part of the mother’s motion seeking summary judgment dismissing the petition. The court erred in relying on the unsworn letters from the subject children’s psychologist because they were not in admissible form … . Without the letters from the children’s psychologist, we conclude that the mother failed to meet her initial burden on her motion of establishing that the children were justified in abandoning the father by refusing to attend visitation. Like the father, the mother did not submit any admissible evidence establishing the reasons for the children’s decision not to visit the father. We therefore modify the amended order accordingly. Matter of Timothy M.M. v Doreen R., 2020 NY Slip Op 06886, Fourth Dept 11-20-20

 

, , ,

THE CUSTODY ARRANGEMENTS SET FORTH IN A SETTLEMENT AGREEMENT SHOULD NOT HAVE BEEN MODIFIED IN THE ABSENCE OF A HEARING AND FAMILY COURT SHOULD NOT HAVE RELIED ON INADMISSIBLE EVIDENCE UNTESTED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the custody arrangements set forth in the settlement agreement should not have been modified in the absence of a hearing and the modification should not have been based upon inadmissible evidence not tested by either party:

… [T]he Supreme Court should not have granted, without a hearing, that branch of the defendant’s motion which was to modify the terms of the parties’ stipulation of settlement. Custody determinations should generally be made only after a full and plenary hearing … . While the general right to a hearing in custody and visitation cases is not absolute, where “facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,” a hearing is required … . Here, the record shows that there were disputed factual issues regarding the child’s best interests, such that a hearing on the defendant’s petition was necessary … .

In addition, decisions regarding child custody and parental access should be based on admissible evidence … . Here, in making its determination, the Supreme Court improperly relied solely on statements and conclusions of witnesses whose opinions and credibility were untested by either party … . Palazzola v Palazzola, 2020 NY Slip Op 06801, Second Dept 11-18-20

 

, ,

THE MATERNAL GRANDMOTHER HAD STANDING TO PETITION FOR VISITATION AFTER MOTHER’S DEATH; FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the maternal grandparent had standing to petition for visitation after mother died. Because the grandparent had standing, Family Court should have held a “best interests” hearing rather than precluding the presentation of evidence and granting father’s petition to deny the petition:

… [I]t is undisputed that the maternal grandparents have standing based upon the death of the child’s mother. Since the maternal grandparents have standing, the Family Court should have proceeded to conduct a best interests determination based upon admissible evidence … . Instead, the maternal grandparents were not permitted to present any evidence, no testimony was taken from any of the parties, and no in camera interview with the child was conducted. We disagree with the court’s determination to grant the father’s application, in effect, to deny the petition and dismiss the proceeding without first conducting a hearing … . Matter of Jafer v Marasa, 2020 NY Slip Op 06789, Second Dept 11-18-20

 

,

PLAINTIFF FAILED TO DEMONSTRATE THE SEPARATION AGREEMENT WAS UNCONSCIONABLE AS A MATTER OF LAW; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff failed to demonstrate the separation agreement was unconscionable as a matter of law and plaintiff’s motion for summary judgment, therefore, should not have been granted. The court outlined the analytical criteria for unconscionability in this context:

“A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or … . However, because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse’s overreaching … . “In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforc[ea]ble because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party” … . “This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se” … . A reviewing court examining a challenge to a separation agreement “will view the agreement in its entirety and under the totality of the circumstances” … . Eichholz v Panzer-Eichholz, 2020 NY Slip Op 06500, Second Dept 11-12-20

 

,

FAMILY COURT SHOULD NOT HAVE RELIED SOLELY ON THE IN CAMERA INTERVIEW WITH THE EIGHT-YEAR-OLD CHILD IN THIS MODIFICATION OF CUSTODY CASE, MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing Family Court and remanding the case, determined the evidence did not support a finding that there had been a change in circumstance sufficient to warrant awarding sole custody to father. The court noted that Family Court should not have relied solely on the in camera interview with the eight-year-old child:

The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. The transcript of the in camera interview shows that the child made inconsistent statements about where he spent the majority of his time. However, even if he had made a definitive declaration, the Court of Appeals has admonished that courts should “not use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,” because “there are grave risks involved in these private interviews. A child whose home is or has been torn apart is subjected to emotional stresses that may produce completely distorted images of its parents and its situation. Also, its feelings may be transient indeed, and the reasons for its preferences may indicate that no weight should be given the child’s choice. Without a full background on the family and the child, these interviews can lead the most conscientious Judge astray” … .

In fact, this admonition is well taken in this case, where the record provides a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Matter of Edwin E.R. v Monique A.-O., 2020 NY Slip Op 06347, First Dept 11-5-20

 

,

UNDER THE CIRCUMSTANCES, A LINCOLN HEARING WILL PROVIDE INFORMATION PERTINENT TO FATHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, remitted the matter to determine whether a change in circumstance warranted a modification of the child custody order. The order did not address where the child should attend school after eighth grade and father sought an modified order allowing the child to attend a public high school and expanding his parenting time. Family Court refused to use information learned in a Lincoln hearing in connection with the father’s burden to show a change in circumstances. The Third Department remitted the matter noting that a Lincoln hearing, under the circumstances, would provide the court with pertinent information:

… [T]he father established a change in circumstances requiring a thorough best interests analysis. To that end, it is undisputed that there is no current order governing where the child is to attend school. Also, the father’s uncontested testimony established that the father and the mother cannot reach an agreement as to where the child should attend school, thus requiring judicial intervention … . …

Family Court erred in denying the father’s motion requesting a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. “Although a child’s wishes can support the finding of a change in circumstances, they are but one factor and are not determinative” … . Although “[t]he decision whether to conduct such a hearing is discretionary, . . . it is ‘often the preferable course’ to conduct one” … . Here, given that the child was 14 years old at the time of the fact-finding hearing and had expressed a preference to attend public school, that this preference was one of the changed circumstances alleged by the father and that the attorney for the child joined in the father’s request for the Lincoln hearing, a Lincoln hearing “would have provided the court with significant pieces of information it needed to make the soundest possible decision” … . Matter of Edwin Z. v Courtney AA., 2020 NY Slip Op 05987, Third Dept 10-22-20

 

,

FATHER WAS NOT ENTITLED TO SUMMARY JUDGMENT TERMINATING HIS PARENTAL RIGHTS ON THE GROUND HIS 18-YEAR-OLD CHILD HAD ABANDONED HIM (THIRD DEPT).

The Third Department, reversing Family Court, determined father was not entitled to summary judgment on his petition to terminate his parental rights on the ground that the 18-year-old had abandoned him:

… [T]he father did not establish his entitlement, as a matter of law, to termination of his child support obligation on the ground of abandonment. Although the father’s submissions detailed his efforts to establish a relationship with the child and the child’s repeated rebuffs of those efforts, the father’s proof failed to demonstrate as a matter of law that the child’s refusal to have contact with him was totally unjustified, particularly given the father’s prolonged absence from the child’s life and the child’s developmental disability and other diagnoses. Such factual issues warranted a full evidentiary hearing and should not have been summarily resolved by Family Court … . Although Family Court had knowledge of prior proceedings between the parties, the justification issue had never been squarely before Family Court and required the presentation of evidence, including potential expert testimony, concerning the impact of the child’s developmental disability and other diagnoses on the child’s refusal to have contact with the father. Matter of Thomas GG. v Bonnie Jean HH., 2020 NY Slip Op 05988, Third Dept 10-22-20

 

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