April 15, 2022
By PetroskeLaw

Matter of Fitzsimmons v. Fitzsimmons, 2019-07672

The Family Court determined that it was in the best interests of the children for the mother to have sole residential custody.  However, the attorneys for the children, in their briefs submitted to the Second Department, have brought new allegations since the order under review was issued in June 2019.  As the Court of Appeals has recognized, changed circumstances may have particular importance in child custody cases and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the child (see Matter of Michael B., 80 NY2d 299, 318).  Given the new developments, the Second Department found that the record is no longer sufficient to review whether the determination regarding custody is in the best interests of the children (see Matter of Magana v. Delph, 195 AD3d at 721-722; Matter of Bosque v. Blazejewski-D’Amato, 123 AD3d 704, 705).  The matter is remanded for a reopened hearing, including in camera interviews with the children, at which the new developments will be considered.


Matter of Felgueiras v. Cabral, 2021-04256

A sound and substantial basis exists in the record to support the determination that a sufficient change in circumstances had occurred such that a change in custody to the father was required to protect the child’s best interests.  The testimony at the hearing established that the mother had interfered with the father’s rights to parental access with the child (see Matter of Griffin v. Moore-James, 104 AD3d 685, 685); that the child, while in the mother’s care, had been observed playing outside late at night, without the mother present; and that the mother had been hospitalized for several days after she physically confronted the father, while possessing a knife in her purse, in the child’s presence (see Matter of Selliah v. Penamente, 107 AD3d 1004, 1005; Matter of Yearwood v. Yearwood, 90 AD3d 771, 774).

However, the Family Court erred in including two provisions in the order that effectively allowed the father to determine whether parental access with the mother should be suspended.  Those provisions did not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access (see Matter of Michael R. v. Aliesha H., 155 AD3d 1042, 1044;  Johnson v. Johnson, 303 AD2d 641, 642), and, consequently, constitute an improper delegation of authority by the Family Court to the father (see Matter of Michael R. v. Aliesha H., 155 AD3d at 1044; Jordan v. Jordan, 8 AD3d 444, 445).