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Week 4-3-2019

Subsequent change in circumstances, Reducing parental access

Appellate Division affirmed the lower Court orders, which, after a hearing,
granted the father’s petition to modify a prior custody order to reduce the
mother’s parental access time and also denying and dismissing the mother’s
petition to modify aforementioned order so as to award her sole custody of
their child.

By consent, the parties’ original custody and parental access order awarded
the father sole legal and physical custody and the mother was awarded
parental access on most weekends.

The father petitioned to suspend the mother’s parental access and telephone
contact due to the mother repeatedly violating their order of custody and
parental access. While the petition was pending, the Family Court temporarily
limited the mother’s parental access as the mother lost her housing and was
temporarily residing with her boyfriend and his mother.
The court granted the father’s petitions to the extent of reducing the mother’s
parental access due to the instability and uncertainty of the mother’s living
environment.

“A court may modify an order awarding custody and [parental access] upon a
showing that there has been subsequent change [in] circumstances and that
modification is in the best interests of the child” (Matter of Mack v Kass, 115
AD3d 748, 748-749, quoting Matter of Sinnott- Turner v Kolba, 60 AD3d
774, 775).

Here, the court determined that there was a change in circumstances and that it
was in the best interest of the child to modify the custody order.

Matter of Al-Dalali v. Rivera, 2018-03195, 2018-03196 & 2018-03197

Biracial child and school placement

Here, the parties separated and verbally agreed that when their child began
attending kindergarten, the child would attend a public school in close
proximity to the father’s home and would live with the father on weekdays
during the academic year. Seven years later, the father commenced the action
for divorce and the mother, who was living in Manhattan, moved for
permission to relocate their biracial child into a private Manhattan school,
contending that the private school would put their child in a better educational
and emotional well-being status as the environment is ethnically and culturally
diverse.

The lower Court denied the mother’s motion after a hearing with a forensic
examiner. The Court conducted an in-camera interview of the child as well
and contended that moving school districts would not be in the best interest of
the child.

The issue was that while the Court agreed that a multicultural environment is
important for a biracial child, the mother was not able to provide evidence that
the child must be moved out of the current school district in order to achieve a
sense of intellectual and emotional well-being as well as comfort regarding their
biracial identity. Furthermore, the mother admitted that the child excelled
academically at his current school and the mother had “no issues” with the
current school district.

Verfenstein v. Verfenstein, 2017-09700

Willfully violating parental access orders by interfering, not fostering a
meaningful relationship between the child and other parent

The mother withheld all parental access from the father for three months and
took their child from the father’s home as he was preparing to travel on
vacation with their child, cancelling the plans.

In a stipulation of settlement, the parties agreed to joint legal custody, with
primary physical custody to the mother. The father petitioned, arguing that the
mother willfully violated the parental access provisions by interfering with his
parental access and also filed a separate petition so as to award him overnight
parental access on his weekday visitation days. The mother also petitioned for
sole custody of their child.

The Court granted the father’s petition, as the mother willfully violated the
parental access provisions of the stipulation, and awarded the father with extra
parental access with the child. Here, the mother failed to provide evidence that
a transfer of custody to solely her was in the child’s best interest. It was
further determined that the custody arrangement that was in place was
properly serving the child’s best interest as both parties provide the child with
“adequate and suitable housing” and that the child is “clearly happy, safe and
comfortable in both homes.”

Furthermore, the Court recognized that both parties struggle to foster the
relationship with the other parent. Based on the mother’s willful interference
between the child and father’s parental time, the Court deemed that sole
custody to the mother would not be in the best interests of that child as she
may fail to promote the relationship with the other parent. The Court also
determined that providing the Mother sole custody would be “rewarding her
for her bad behavior.”

Matter of Roa v. Marte, 2018-050708

Violation of support order and awarding counsel fees to opposing party

Here, the father was determined to be in willful violation of an order of
support, the Family Court properly awarded the mother counsel fees as
required by the Family Court Act § 438 (b).

Matter of Grace v. Russo, 2018-05666

Reduction in income and denied downward modification of spousal
support, prima facie evidence of a willful violation

The Appellate Division affirmed the lower Court decisions to deny the former
husband’s petition for a downward modification of spousal support, grant the
former wife’s violation petition, finding that the former husband willfully
violated a prior order of spousal support, and directed the entry of a money
judgment against the former husband.

The Family Court may modify any prior order or judgment with respect to
maintenance. “The party seeking the modification of a maintenance award has
the burden of establishing ‘the existence of the change in circumstances
that warrants the modification” (Noren v. Babus, 144 AD3d 762, 764, quoting
Rabinovich v. Shevchenko, 120 AD3d 786, 786).

“Importantly, in determining if there is a substantial change in circumstances
to justify a downward modification, the change is measured by comparing the
payor’s financial circumstances at the time of the motion for downward
modification and at the time of divorce or the time when the order sought to
be modified was made” (Matter of Parascandola v. Aviles, 59 AD3d 449, 450
[internal quotation marks omitted]; see Taylor v. Taylor, 107 AD3d 785, 785).

Here, although the former husband provided evidence that there was a
reduction in his income from 2016 to 2017, he failed to offer any evidence
regarding his financial status at the time of the parties’ divorce. Furthermore,
the Court found that the reduction in his income did not constitute a
substantial change in circumstances to warrant a downward modification of
his spousal support payments.

The former husband provided prima facie evidence of a willful violation of
spousal support payment as he admitted his failure to pay spousal support
since July 2016 and thereafter failed to meet his burden of providing credible
evidence as to why his failure to pay was not willful.

Matter of Connor v. Connor, 2018-07360

Support order on consent later objected by a party

After an increase in the father’s child support obligation due to a cost of living
adjustment, the father petitioned for a downward modification of his child
support obligation. During a hearing, the Support Magistrate issued two orders
on consent, as the parties agreed to resolve their petitions. The father objected,
alleging that he was deprived of his right to counsel and contended that he
consented to the orders under duress. The Appellate Division agrees with the
lower Court to deny the father’s objections as he did consent to the orders.
However, in regards to his claim that he consented under duress, the Court
claims that his remedy is to move in the Family Court to vacate the orders.

Matter of Comoletti v. Papapietro, 2018-09757

Child Custody Jurisdiction, Domestic Relations Law § 76-b and § 75-i

Here, the family relocated from New York to South Carolina when the father
obtained new employment in South Carolina. The mother and children moved
back to New York during the subsequent year and the parties entered into a
custody and parental access agreement through their South Carolina divorce
proceedings that were entered in 2016. The mother petitioned in November
2016 in the Family Court of Nassau County to modify parental access,
however, this sought only that the court exercise jurisdiction. The mother
petitioned in 2017 in the same Court to modify the divorce decree by
awarding her custody of the children. The father moved to dismiss the
petition, contending that the Family Court, Nassau County, lacked
jurisdiction.

The Court directed a hearing on the jurisdiction issue and informed the parties
that the Family Court, Nassau County had been in communication with the
South Carolina court via email, pursuant to the Domestic Relations Law § 75-
i. The Family Court determined that the father was no longer a resident of
South Carolina and so it had jurisdiction to hear the mother’s petition.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
provides that a court of this state “may not modify a child custody
determination made by a court of another state unless a court of this state has
jurisdiction to make an initial [custody] determination (Domestic Relations
Law § 76-b[2]). However, the UCCJEA contains no definition of “reside” or “residence.”
Here, the Family Court determined, based on the consideration of
evidence submitted and the credibility of the parties, that the father no longer
resided in South Carolina, but had relocated to New York.

The Appellate Division agrees with the lower Court to exercise jurisdiction by
directing the parties to engage in mediation in New York under the terms of
the modified divorce decree. The Court found that emailing the South
Carolina Court was proper and in accordance with the DRL.

Also, the Appellate Division determined it could not address issues raised by
the mother on appeal since she did not file a notice of appeal herself.

Matter of Briggs v. Briggs, 2018-09152

Reversing the reduction of child support obligation expenses and the
entitled credit against the defendant’s child support obligation for his
payments

The parties, who are both attorneys, deviated from the Child Support
Standards Act in their separation agreement as the defendant waived his
equity in the marital residence. At the time the parties entered into a separation
agreement, the defendant, a partner at a law firm, was earning $233,406
annually, while the plaintiff was working part-time and earning $48, 104
annually.

The defendant moved to modify the separation agreement so as to decrease his
basic child support obligation, reduce his pro rata share of child support
add-on expenses and college expenses, eliminate the annual cost of living
increase, and entitle him to a “room and board credit” against his child support
obligation. The defendant supported his motion by stating that his income had
decreased since the initial support order, while the plaintiff’s salary had
increased annually. The lower Court denied his request for downward modification
of his basic child support obligation on the grounds that the defendant voluntarily
left his employment at the law firm and that the plaintiff’s return to work as a
full-time employee was unforeseeable.

The Appellate reversed the lower Court Order regarding a credit on room and
board. In its decision the Court ruled that the lower court should not have
awarded the defendant a credit against his child support obligation for his
payment of the children’s college room and board expenses as the parties did
not intend that the defendant receive said credit in their separation agreement.
“A court may not write into a contract conditions the parties did not insert by
adding or excising terms under the guise of construction, and it may not
construe the language in such a way as would distort the contract’s apparent
meaning” (Cohen-Davidson v. Davidson, 291 AD2d 474, 475, see Matter of
Scalabrini v. Scalabrini, 242 AD2d 725, 726).

H. (Anonymous) v. M. (Anonymous), 2016-06621 & 2016-06622

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