Decisions of Interest

Mother Loses Custody for Thwarting Visitation

Supreme Court, Nassau County, has withdrawn residential custody of a child from a divorced mother and granted it to the father due to the mother's continual refusal to abide by the non-custodial parent's visitation schedule. J.A. v. C.A., 203494/2009, NYLJ 1202567592633, at *1 (Sup. Ct., Nassau Cty. 8/8/12) (Janowitz, J.).

The parties were married in 2008, and came to a divorce settlement in 2010. With that settlement, custody was to be joint, with the mother having residential custody. The father further permitted the mother to move with their child from New York to South Carolina, on the condition that he be permitted a “liberal schedule of visitation.” That schedule was not spelled out in the settlement document. Thereafter, the father was able to see the child once, but the mother denied all subsequently scheduled visits when it came time for them to take place. The father therefore moved the court for a change of custody, which the court granted after finding that the mother “routinely fabricated excuses” to keep the father from seeing his child. For example, in one instance the father travelled to South Carolina for a scheduled visit only to be told that he could not see his son because the boy was sick ' this in spite of the fact that the child had spent that day with his grandmother, with whom he had visited a museum.

Custody Wrongly Taken From Mother with Unorthodox Beliefs

The Appellate Division, Second Department, reversed an order of Supreme Court, Nassau County, that switched residential custody from a mother to a father, because the father's evidence of the mother's interest in “spiritual and paranormal phenomena” did not establish a change in circumstances contrary to the best interests of the child. Sano v. Sano, 2012 N.Y. App. Div. LEXIS 5957 (2d Dept. 8/22/12) (Angiolillo, J.P., Dickerson, Belen and Chambers, JJ.).

Children Swing Judge's Opinion Toward Placement with Father

A Monroe County judge has declined to award physical custody of two boys, 11 and 14 years old, to their mother who was moving to Washington, DC, in large part because they expressed a preference for remaining in Rochester, where they had grown up and where their father planned to stay. Byron v. Davis, 2012 NY Slip Op 22240 (Sup. Ct., Monroe Cty., 8/28/12) (Dollinger, J.).

The parents in this action had been divorced for one year when the mother was offered a new position as an assistant dean at Howard University. Wanting to take advantage of this opportunity, she asked the court to permit her to move to Washington, DC, with the children. They had until that time been in her physical custody most of the time, while the father had visitation two nights a week and on alternate weekends. The father opposed the move out of state.

The court found that both parents were more than fit: Each is an ordained minister and appeared to the court to be devoted to their children. Because it was she who proposed moving the children away from their father, however, the court observed that the precedent set by Matter of Tropea v. Tropea, 87 NY2d 727 (1996), placed the duty of showing that the move would be in the best interests of the children on the mother. This she was unable to do, because even though the children would likely fare well in Washington, DC ' enjoying the opportunities afforded by the close proximity of cultural institutions, their mother's increased salary and free tuition at Howard University ' their well-being in Rochester was already well established, as evidenced by their close relationship with their father, as well as their good grades and extensive involvement in extracurricular activities like the Boy Scouts and music lessons. Tipping the scales even further in favor of their remaining in Rochester was the boys' stated wish not to be moved. “The constancy of their preference and the sound basis for it ' it is undisputed that they have friends, opportunity, activities and substantial academic success in Rochester ' requires that this court ascribe some significant weight to their choice,” stated Justice Richard Dollinger in awarding primary physical custody to the father.

What Does 'Extreme Hardship' Mean?

A Rochester judge ordered the suspension of a man's support obligation to his wife after determining that the man's job loss had created an “extreme hardship” in accordance with Domestic Relations Law (DRL) ' 236 that warranted a reduction in his obligation to zero. Platt v. Platt , 2012 NY Slip Op 51583 (Sup. Ct., Monroe Cty. 8/22/12) (Dollinger, J.).

The couple entered into a settlement agreement in 2011, in accordance with which the husband began paying the wife $700 per month in support. That amount was set to go up to $1,000 per month in 2015, when their daughter was expected to graduate from college. However, the husband soon lost his job and was unable to obtain another. His support obligation was therefore reduced to $400 per month. When his unemployment benefits expired in April of this year, the husband moved for a total suspension of his support obligation, claiming that, as he was now living below the poverty level, the “extreme hardship” provision of DRL ' 236 applied. After noting that the State legislature had made his job difficult by failing to define what it meant by “extreme hardship” in the statute, the court agreed with the husband and suspended his financial duties to the wife, who subsists just above the poverty level on disability payments. “Sadly, this Court cannot stretch family resources beyond their dollar and cents limitation, when both parties are facing a new, but unwanted, life below the poverty line,” wrote Acting Supreme Court Justice Richard Dollinger. “The husband and wife share their economic plight: both suffer 'extreme hardships' from the lack of income and resources.” The judge declined to impute income to the husband for amounts his parents were giving him, as an advance on his inheritance, to help cover expenses, but he did emphasize that the suspension of the support obligation is merely temporary. When the husband resumes employment, the court plans to set a new maintenance amount.

Mother Loses Custody for Thwarting Visitation

Supreme Court, Nassau County, has withdrawn residential custody of a child from a divorced mother and granted it to the father due to the mother's continual refusal to abide by the non-custodial parent's visitation schedule. J.A. v. C.A., 203494/2009, NYLJ 1202567592633, at *1 (Sup. Ct., Nassau Cty. 8/8/12) (Janowitz, J.).

The parties were married in 2008, and came to a divorce settlement in 2010. With that settlement, custody was to be joint, with the mother having residential custody. The father further permitted the mother to move with their child from New York to South Carolina, on the condition that he be permitted a “liberal schedule of visitation.” That schedule was not spelled out in the settlement document. Thereafter, the father was able to see the child once, but the mother denied all subsequently scheduled visits when it came time for them to take place. The father therefore moved the court for a change of custody, which the court granted after finding that the mother “routinely fabricated excuses” to keep the father from seeing his child. For example, in one instance the father travelled to South Carolina for a scheduled visit only to be told that he could not see his son because the boy was sick ' this in spite of the fact that the child had spent that day with his grandmother, with whom he had visited a museum.

Custody Wrongly Taken From Mother with Unorthodox Beliefs

The Appellate Division, Second Department, reversed an order of Supreme Court, Nassau County, that switched residential custody from a mother to a father, because the father's evidence of the mother's interest in “spiritual and paranormal phenomena” did not establish a change in circumstances contrary to the best interests of the child. Sano v. Sano , 2012 N.Y. App. Div. LEXIS 5957 (2d Dept. 8/22/12) (Angiolillo, J.P., Dickerson, Belen and Chambers, JJ.).

Children Swing Judge's Opinion Toward Placement with Father

A Monroe County judge has declined to award physical custody of two boys, 11 and 14 years old, to their mother who was moving to Washington, DC, in large part because they expressed a preference for remaining in Rochester, where they had grown up and where their father planned to stay. Byron v. Davis , 2012 NY Slip Op 22240 (Sup. Ct., Monroe Cty., 8/28/12) (Dollinger, J.).

The parents in this action had been divorced for one year when the mother was offered a new position as an assistant dean at Howard University. Wanting to take advantage of this opportunity, she asked the court to permit her to move to Washington, DC, with the children. They had until that time been in her physical custody most of the time, while the father had visitation two nights a week and on alternate weekends. The father opposed the move out of state.

The court found that both parents were more than fit: Each is an ordained minister and appeared to the court to be devoted to their children. Because it was she who proposed moving the children away from their father, however, the court observed that the precedent set by Matter of Tropea v. Tropea , 87 NY2d 727 (1996), placed the duty of showing that the move would be in the best interests of the children on the mother. This she was unable to do, because even though the children would likely fare well in Washington, DC ' enjoying the opportunities afforded by the close proximity of cultural institutions, their mother's increased salary and free tuition at Howard University ' their well-being in Rochester was already well established, as evidenced by their close relationship with their father, as well as their good grades and extensive involvement in extracurricular activities like the Boy Scouts and music lessons. Tipping the scales even further in favor of their remaining in Rochester was the boys' stated wish not to be moved. “The constancy of their preference and the sound basis for it ' it is undisputed that they have friends, opportunity, activities and substantial academic success in Rochester ' requires that this court ascribe some significant weight to their choice,” stated Justice Richard Dollinger in awarding primary physical custody to the father.