March 25, 2020 Decisions

Order Dismissing Nonparent Custody Petitions Reversed; Mother’s Boyfriend and Maternal Grandfather Proved Extraordinary Circumstances Sufficient for Standing
Moynihan v. Cohen, Cohen v. Moynihan, Krasnoff v. Cohen, 2019-03088

The mother and the father, Alexander Roy Cohen, divorced in 2015 and the mother was awarded sole legal and residential custody of their children, with parental access to the father. The mother and children moved in with the mother’s boyfriend, petitioner Paul Krasnoff, around December 2014. The mother died from cancer in April 2018. The father, Krasnoff, and the children’s maternal grandfather, Kevin Moynihan, each filed custody the petitions. After a hearing, the Family Court found that Krasnoff and Moynihan failed to establish the existence of extraordinary circumstances to confer standing upon them and dismissed the petitions. Krasnoff and Moynihan appealed.

The Second Department reversed and reinstated the petitions. “In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances.” (Matter of Bailey v Carr, 125 AD3d 853, 853; see Matter of Bennett v Jeffreys, 40 NY2d 543, 548). “Only if the nonparent meets this burden does the court determine whether the best interests of the child warrant awarding custody to the nonparent” (Matter of Bailey v Carr, 125 AD3d at 853; see Matter of Hunte v Arnold, 147 AD3d 946, 947).

The petitioners met their burden sufficient for the court to determine whether the best interests of the child warrant awarding custody to the nonparent (Matter of Bailey v. Carr, 125 AD3d at 853; see Matter of Hunte v. Arnold, 147 AD3d 946, 947). The evidence sufficiently established that the father had a prolonged separation from the children, had not been involved in their lives, and failed to financially support them. The evidence also demonstrated that a strong emotional bond had formed between the children and Krasnoff and Moynihan (see Matter of Williams v. Frank, 148 AD3d 815, 816).

 

Supreme Court properly awarded child support retroactive to the date that custody was transferred on the father’s motion; Not inappropriate for the parties to equally share the costs of the attorneys for the children
Chamberlain v. Chamberlain, 2016-07767

In a post-judgment matrimonial action, the defendant moved to modify custody of the parties’ children so as to award him sole custody, and was granted temporary custody. At the hearing, the defendant was awarded sole custody, upon the plaintiff’s consent, and the plaintiff was directed to pay child support. The court imputed $50,000 in annual income to the plaintiff when calculating child support. The court further directed the plaintiff to pay child support arrears retroactive to the date custody was temporarily transferred to the defendant and 50% of the attorneys for the children fees. The plaintiff appealed and the Order was affirmed.

The court’s imputation of income was supported by evidence in the record, including “the prior imputation of income to the plaintiff in the divorce action, and her own testimony that she had earned over $56,000 in annual income the year the defendant moved to modify custody.” Further, “a party’s child support obligation is retroactive to the date the application was first made” (Harrison v Harrison, 255 AD2d 490, 490; Miklos vMiklos, 9 AD3d 397, 399). The Court properly awarded the defendant retroactive child support to the date custody of the children was transferred from the plaintiff to him in August 2012 (see Shapiro v. Shapiro, 25 AD3d 585, 587). Lastly, the record does not support a finding that it was inappropriate or inequitable to require the parties to share equally the responsibility of paying the fees of the attorneys for the children (see Matter of Kandus v. Forlenza, 110 AD3d 885, 886).

 

Family Court properly denied Father’s petition for downward modification of child support; Claim of ineffective assistance of counsel in a civil context will not be entertained absent extraordinary circumstances
Matter of Oelsner v. Heppler, 2018-12698

The respondent mother and the petitioner father are unmarried parents of one child. Pursuant to a so-ordered agreement, the father is obligated to pay $1,000 per month in child support. In December 2015, the mother petitioned to enforce the terms of the parties’ agreement with respect to the father’s child support obligation. In January 2016, the father filed a cross petition seeking a downward modification of his child support obligation. After a hearing, the father’s petition was dismissed, and his objections were denied. The father appealed.

The Second Department agreed with the Family Court’s determination that the father failed to meet his burden of establishing a substantial change in circumstances warranting a downward modification of his child support obligation based on his claim that he can no longer afford the agreed-upon amount (see Matter of Tomassi v. Suffolk Dept. of Social Servs., 144 AD3d 930, 931). The evidence, including the father’s bank account statements, did not support the claim.

The father argued that he was deprived the effective assistance of counsel. In the context of civil litigation, however, such a claim will not be entertained absent extraordinary circumstances (see Matter of Berg v Berg, 166 AD3d 766, 767;Matter of Ferrara v Ferrara, 52 AD3d 599, 600), which the father failed to establish (see Matter of Lorys v Powell,116 AD3d 1047, 1048; Matter of Ferrara v Ferrara, 52 AD3d at 600).

 

Mother was deprived of a fair and impartial hearing due to bias of the Family Court judge; Custody order reversed and case remanded for a new hearing before a different judge
Matter of Siegell v. Iqbal, 2019-00769

In October 2018, the mother commenced a proceeding for sole custody of the parties’ daughter. The father cross-petitioned for joint custody and shortly before the hearing, amended his petition to seek sole custody of the child. The Family Court awarded sole legal custody of the child to the father with a parental access schedule between the mother and the child following a hearing. The mother appealed.

The Appellate Division found that “the record of the proceedings supports the mother’s contention that the Family Court was biased against her, depriving her of a fair and impartial hearing.” Although the bias claim was not preserved for appellate review, the Second Department reached the issue “in the interest of justice” (see Matter of Baby Girl Z. [Yaroslava Z.], 140 AD3d 893, 894). The record “demonstrates that the court predetermined the outcome of the case during the hearing and took an adversarial stance against the mother by, among other things, interjecting itself into the proceedings by cross-examining the mother on matters irrelevant to a determination of custody.”

Over the two-day hearing, the court’s “inquiry of the mother exceeded 30 pages of transcript.” In regards to the court’s inquiry of the father, the first set related to scheduling parental access to him while the hearing was pending, and the second set “appeared designed to elicit testimony from the father that was unfavorable to the mother, including one instance where the court intimated that the mother was practicing ‘extortion’ against the father in order to gain an advantage in the proceedings (see Matter of Baby Girl Z. [Yaroslava Z.], 140 AD3d at 894-895).

In relation to the mother’s contention that she received ineffective assistance of counsel, that allegation is without merit (see Matter of Rosado v. Rosado, 136 AD3d 927, 928). Further, since the mother did not request a forensic evaluation of the father, and there was no evidence that the father’s mental health condition ever negatively impacted his parenting, the Court did not err in failing to, sua sponte, order an evaluation (see Matter of Diaz v. Santiago, 8 AD3d 562, 563).

The order is reversed and the matter is remanded to the Family Court for a new hearing on the issue of custody before a different Judge, to “be held with all convenient speed, and a new determination thereafter.” Lastly, since evidence portrays that the mother interfered with the father’s parental access schedule before the petitions were filed and during the proceedings, the father shall have temporary custody of the child, with parental access to the mother pursuant to the terms of the order appealed from, until the Family Court determination.

 

Family Court erred in dismissing mother’s petition for modification of custody; Appellate Division granted mother sole custody with supervised access to father
Matter of Georgiou-Ely v. Ely, 2019-01214

Pursuant to an order entered upon consent, the parties were awarded joint legal custody of their children with residential custody to the mother, and unsupervised parental access to the father. The mother subsequently petitioned, approximately two years later, to modify the custody order so as to award her sole legal and physical custody of the children and to require that the father’s parental access with the children be supervised. At the conclusion of the hearing on the petition, at which the father failed to appear, the court dismissed the petition. The mother appealed.

The Order is reversed. “The record reflects that the children’s relationship with the father has deteriorated since the issuance of the custody order (see Matter of Burke v. Cogan, 122 AD3d 625, 626), that the father had threatened to strike the children with a belt, and that the father denigrated the mother in the presence of the children (see Matter of Zeis v. Slater, 57 AD3d 793, 794).” Further, the children, then 11 and 13 years old at the time of the hearing, relayed their strong preference to reside with the mother (see Matter of Burke v. Cogan, 122 AD3d at 626; Matter of Dorsa v. Dora, 90 AD3d 1046, 1047). The Appellate Division also found the record indicates that unsupervised parental access with the father would be detrimental to the children at that time (see Matter of Masri v. Masri, 171 AD3d 1183, 1185). The mother’s petition to modify the custody order so as to award her sole custody of the parties’ children and to require that the father’s parental access be supervised is granted. The matter is remanded to the Family Court to establish a supervised parental access schedule for the father that is in the best interests of the children.