Decisions of Interest

Mother's Actions Not Enough to Bar Her from Home Pendente Lite

A husband's motion seeking exclusive occupancy of the marital residence pending divorce was denied because the wife's behavior did not rise to the level required to show her continued presence in the home would endanger persons or property there, and such relief would serve to predetermine custody issues that should be decided following a full hearing on that issue. T.D.F. v. T.F., 2011 NY Slip Op 51188U (Sup. Ct., Nassau Cty., 6/29/11) (Falanga, J.).

The husband moved for exclusive use and occupancy of the marital residence pending divorce. He alleged his wife had developed a relationship with a “significant other,” and that she was focusing on this relationship to the detriment of her duties toward the children, such as preparing meals and helping with their homework. He also noted that he had obtained an order of protection on behalf of one of their daughters following an incident in which the wife struck the daughter, causing her nose to bleed. Because of this, the wife and daughter could not live in the same house, so the daughter was living with her grandparents nearby. This, the husband averred, was unfair to that daughter, as well as to the remaining three children of the marriage. He asked the court to give him sole occupancy of the home so that the marital discord that was ongoing would stop and the children could live in a happier, more stable environment. The wife opposed, claiming that the husband had been trying to alienate the children from her by discussing the divorce, her relationship with the outside “significant other” and by blaming the children's emotional issues on her, though they had commenced prior to the breakdown of the marriage. The children corroborated their father's claim that he now performed most of the domestic duties. Three of the children, who ranged in age from 11 to 17, wanted the mother to leave the home, and the fourth said that if the mother left she would prefer to live with the mother.

The court noted: “Conspicuously absent from the husband's motion is a request for temporary custody of the children, however, the thrust of the husband's application is for exactly that, and the court deems the motion to include a request for temporary custody.” The court recognized the unfairness that might result from forcibly removing a spouse from the marital home on the basis of untested allegations in conflicting affidavits. It determined that the grant of temporary custody to either party would act as a predetermination of the custody issue, and that a hearing on that subject would be in the best interests of the children. Also important was the fact that, although the wife admitted to striking her child, the mother had been provoked by the child's physical attack on her, and no similar incident had occurred since that one in November 2010. The court stated that while it was statutorily empowered to grant one spouse temporary use and occupancy of the marital residence during the pendency of divorce proceedings (see, DRL ' 234), “[s]uch order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife.” Neither of these circumstances had been shown here. This, along with the conflicting evidence of parental alienation, abdication of responsibility and other issues that should be fully explored in a custody hearing, convinced the court that the motion should be denied.

Mother's Actions Not Enough to Bar Her from Home Pendente Lite

A husband's motion seeking exclusive occupancy of the marital residence pending divorce was denied because the wife's behavior did not rise to the level required to show her continued presence in the home would endanger persons or property there, and such relief would serve to predetermine custody issues that should be decided following a full hearing on that issue. T.D.F. v. T.F. , 2011 NY Slip Op 51188U (Sup. Ct., Nassau Cty., 6/29/11) (Falanga, J.).

The husband moved for exclusive use and occupancy of the marital residence pending divorce. He alleged his wife had developed a relationship with a “significant other,” and that she was focusing on this relationship to the detriment of her duties toward the children, such as preparing meals and helping with their homework. He also noted that he had obtained an order of protection on behalf of one of their daughters following an incident in which the wife struck the daughter, causing her nose to bleed. Because of this, the wife and daughter could not live in the same house, so the daughter was living with her grandparents nearby. This, the husband averred, was unfair to that daughter, as well as to the remaining three children of the marriage. He asked the court to give him sole occupancy of the home so that the marital discord that was ongoing would stop and the children could live in a happier, more stable environment. The wife opposed, claiming that the husband had been trying to alienate the children from her by discussing the divorce, her relationship with the outside “significant other” and by blaming the children's emotional issues on her, though they had commenced prior to the breakdown of the marriage. The children corroborated their father's claim that he now performed most of the domestic duties. Three of the children, who ranged in age from 11 to 17, wanted the mother to leave the home, and the fourth said that if the mother left she would prefer to live with the mother.

The court noted: “Conspicuously absent from the husband's motion is a request for temporary custody of the children, however, the thrust of the husband's application is for exactly that, and the court deems the motion to include a request for temporary custody.” The court recognized the unfairness that might result from forcibly removing a spouse from the marital home on the basis of untested allegations in conflicting affidavits. It determined that the grant of temporary custody to either party would act as a predetermination of the custody issue, and that a hearing on that subject would be in the best interests of the children. Also important was the fact that, although the wife admitted to striking her child, the mother had been provoked by the child's physical attack on her, and no similar incident had occurred since that one in November 2010. The court stated that while it was statutorily empowered to grant one spouse temporary use and occupancy of the marital residence during the pendency of divorce proceedings (see, DRL ' 234), “[s]uch order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife.” Neither of these circumstances had been shown here. This, along with the conflicting evidence of parental alienation, abdication of responsibility and other issues that should be fully explored in a custody hearing, convinced the court that the motion should be denied.