May 13, 2020 Decisions

Supreme Court properly awarded mother sole custody and five year stay away order of protection against father
Goikhman v. Biton, 2018-10220; 2018-13511
Following a domestic incident in January 2015, the mother commenced an action for divorce and ancillary relief. The mother was awarded a temporary order of protection against the father. In May 2015, the mother filed a family offense petition and both parties filed custody petitions for the children. The action for divorce was transferred to the Integrated Domestic part of the Supreme Court to join the family offense proceeding, as well as a related criminal matter (see 22 NYCRR 141.4[b]).
Following a nonjury trial, the Supreme Court, in a decision and order, directed the issuance of an order of protection against the father requiring him to stay away from the mother for a period of five years, finding that his commission of family offenses against the mother in front of the children constituted aggravating circumstances warranting the imposition of the order. In a judgment of divorce, the court awarded the mother sole custody of the children and awarded the father parental access with the children on alternate weekends, as well as an alternating schedule of school, religious, and legal holidays. The father appealed.

“Here, the Supreme Court’s determination that the children’s best interests would be served by awarding sole legal and physical custody to the mother has a sound and substantial basis in the record and will not be disturbed (see Matter of Masri v. Masri, 171 AD3d 1183; Matter of Carr v. Thomas, 169 AD3d at 904). Furthermore, the issuance of the order of protection is supported by the facts in the record since it was established that the father committed family offenses against the mother in the presence of the children (see Family Ct Act §§ 827[a][vii]; 842; Matter of Harry v. Harry, 85 AD3d 790, 791; Matter of Reilly v. Reilly, 254 AD2d 361). The five-year term is appropriate given the circumstances of the case (see generally Matter of Kaur v. Singh, 112 AD3d 933, 934).

Family Court erred in summarily dismissing the mother custody and paternity petition
Matter of Linares-Mendez v. Cazanga-Payes, 2019-06678
In February 2019, the mother filed a petition pursuant to Family Court Act article 6 for sole custody of the subject child for the purpose of obtaining an order, among other things, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (“SIJS”) pursuant to 8 USC § 1101(a)(27)(J). The petition alleged that the respondent was the child’s father. In an order, the Family Court, upon noting that the mother’s petition contained information regarding the identity of the child’s father that was inconsistent with representations made by the mother in a prior custody proceeding, summarily dismissed the petition, with prejudice, on the ground that the respondent’s paternity had not been established. The mother appealed.

The Second Department found that the Family Court should not have summarily dismissed the petition based on the mother’s failure to establish the respondent’s paternity. “The mere fact that the [respondent’s] paternity has not been established does not preclude the mother’s custody petition (see Matter of Olga L.G.M. [Santos T.F.], 164 AD3d 1341, 1342; Matter of Jimenez v. Perez, 144 AD3d 1036, 1037). The court should have provided the mother the opportunity to explain the inconsistencies between the allegations in the petition and those made in a prior custody petition. The matter is remanded to the Family Court, Dutchess County, for a hearing and a new determination of the petition (see Matter of Jimenez v. Perez, 144 AD3d at 1037; Matter of Maria E.S.G. v. Jose C.G.L., 114 AD3d 677, 678).

Supreme Court properly awarded residential custody to the mother but should have ordered joint legal custody as the parties had a history of working together for the benefit of the children
Phillips v. Phillips, 2019-05247
The parties are parents of twins born in 2011. Prior and subsequent to the birth of the twins, the parties and the twins, along with the plaintiff’s two children from prior marriages, resided in the plaintiff’s home in Valley Cottage. The parties married in 2016. Around September 2016, the defendant moved to a home he owned in Connecticut. The plaintiff and the twins spent time in both the New York and Connecticut residences. The twins were enrolled in a day care in Connecticut by December 2016. The plaintiff and the twins ceased their trips to Connecticut when the parties’ relationship deteriorated. The plaintiff filed a petition in the Family Court, Rockland County, for an order of protection and a petition for sole custody of the twins, and the defendant filed a cross petition in the Family Court, Rockland County, also seeking sole custody. The plaintiff commenced this action for divorce and ancillary relief in the Supreme Court, Rockland County, and the parties consented to transfer and consolidate the petitions from the Family Court to the Supreme Court. Following a custody trial lasting over twenty days, the Supreme Court awarded the plaintiff sole legal and physical custody of the twins, with parental access to the defendant. The defendant appealed.

The Second Department found on appeal that contrary to the defendant’s contention, the record does not support an inference that the Supreme Court had abdicated its role as a fact finding by adopting portions of the plaintiff’s post-trial memorandum in its decision and order. The decision and order “reflects that the court engaged in a detailed analysis of the evidence presented at trial, drew from each of the post-trial memoranda that were submitted by the plaintiff, the defendant, and the attorney for the children, and reached its own determinations (see Henery v. Henery, 105 AD3d 903, 904). The Supreme Court’s determination that the best interests of the twins would be served by awarding sole custody to the plaintiff is supported in the record. The court acknowledged that both parties had credibility issues, but also found that both parties were competent caregivers. The evidence established that the plaintiff had been the primary caregiver for the twins, and that continuing to reside in Valley Cottage with the plaintiff, in the community where they had lived for their entire lives, besides the few months they lived in Connecticut, will promote stability in the twins’ lives (see Matter of Psaros v. Mitchell-Ortega, 128 AD3d 703, 704).

However, the Second Department found that the evidence demonstrates while there is some antagonism between the parties, “it is not so severe that they would be unable to put their differences aside for the good of the twins and cooperate on major decisions concerning the health, education, and religion of the twins (see Matter of Spampinato v. Mazza, 152 AD3d 525, 526; Matter of Thorpe v. Homoet, 116 AD3d 962, 963). The court-appointed forensic evaluator testified that the prior to the parties’ separation, they agreed on the major issues of health, education, and religion. The plaintiff testified that, while litigation was pending, the parties worked with each other to allow for access with the twins outside the parental access schedule, celebrated the twins’ birthdays together, and shared dinners together during the other party’s parental access time. The defendant testified that they attended parent teacher conferences together, an education program for one of their children, and a school event together. The court should have awarded the parties joint legal custody of the twins.

Family Court properly denied father’s objections denying his petition for downward modification for failure to show a change in circumstances
Matter of Fishman v. Solomon, 2018-13886
The father appealed from a Family Court order denying his objections to an order denying his petitions for a downward modification of his child support obligation. The Second Department agreed with the Family Court that the father failed to demonstrate a substantial change in circumstances since the entry of the stipulation warranting the modification of the child support provision (see Matter of Oelsner v. Heppler, 181 AD3d 916; Matter of Baumgardner v. Baumgardner, 126 AD3d 895; see also Family Ct Act § 451[3][a]). Further, the father’s contentions with respect to the Americans with Disabilities Act (42 USC § 12101 et seq.) are not properly before the Appellate Division, as they were not raised in the father’s objections (see Matter of Cook v. Charles, 159 AD3d 899, 900).

In post-judgment proceeding, Supreme Court properly denied motion because court “cannot rewrite the unambiguous terms of a marital stipulation of settlement”
Tajram v. Tajram, 2018-15047
The parties were divorced by a judgment in 2016. The parties also executed a stipulation of settlement which provided, among other things, for the sale of certain real property and the equitable distribution of the proceeds of the parties. The stipulation further provided that the “parties agree to collect their respective rental incomes until such time a closing is held.” In 2018, the defendant moved to direct the plaintiff “to turn over all leases and expenses from subject property 1002 Hart Street Brooklyn New York in order to reconcile properties subject to equitable distribution” and pay to the defendant a share of rents collected by the plaintiff; to direct that “the properties be transferred one to each party based on proposed reconciliation terminating and co-dependency of the parties in resolving the equitable distribution”; and to direct the plaintiff to pay a certain sum representing the plaintiff’s use of one of the parcels of real property at issue. The Supreme Court denied those portions of the defendant’s motion, and the defendant appealed.

“Courts cannot rewrite the unambiguous terms of a marital stipulation of settlement to distribute items which were not provided for in the stipulation or to ‘deconstruct the division of assets which the parties provided for unambiguously in their stipulation’” (Pulaski v. Pulaski, 22 AD3d 820, 821; see Genger v. Genger, 81 AD3d 561, 561). In the parties’ stipulation, there were no provisions entitling the defendant to the requested relief (Brantly v. Brantly, 89 AD3d 881, 882). Furthermore, since the express terms of the stipulation of settlement provided that “the parties waive all and any other claims of equitable distribution,” the issues of equitable distribution were fully resolved.

Family Court determination of custody had a sound and substantial basis in the record and will not be disturbed
Matter of Romero v. Hierrera, 2018-12947; Matter of Herrera v. Romero, 2018-12950
Here, the parties petitioned for sole legal and residential custody of their child. Following a hearing, the Family Court awarded the father sole legal and residential custody of the child, with parental access to the mother, and dismissed the mother’s petition. The mother appealed. “The court’s determination depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents” (Matter of Toro v. Williams, 167 AD3d 634, 635, quoting Matter of Blanco v. Corbett, 8 AD3d 374, 374). The Second Department found that, under the totality of the circumstances, awarding the father custody of the child was in the child’s best interests and has a sound and substantial basis in the record. Thus, the Family Court determination will not be disturbed.

Family Court properly declined to sign order to show cause where mother’s petition, if proven, failed to allege good cause to modify order of protection
Matter of Curcio v. Curcio, 2019-04236
The Family Court, following a hearing, found that the mother committed a family offense. The court issued a two-year full stay-away order of protection against the mother in favor of the children. Subsequently, the mother moved to modify the order of protection. The court, in its order, noted its familiarity with the proceedings and declined to sign the order to show cause. The mother noticed and perfected this appeal.

“An order denying an application to sign an order to show cause is not appealable (see CPLR 5704[a]; Khanal v. Sheldon, 74 AD3d 894). The Second Department, however, found it appropriate under the circumstances of this case to treat the instant notice of appeal as an application for review pursuant to CPLR 5704(a). Pursuant to Family Court Act § 844, “for good cause shown, the family court may after hearing reconsider and modify” an order of protection issued in a family offense proceeding. The mother here failed to provide in her affidavit attached to the order to show cause allegations which, if proven, might constitute good cause to warrant modification of the order of protection (see Family Ct Act § 844; Matter of Mohammad v. Mohammad, 299 AD3d 363). Therefore, the Second Department agrees with the Family Court’s determination declining to sign the order to show cause (see CPLR 2214[d]).

Family Court properly awarded sole custody to the father as the more stable parent and declined to award joint custody where parties demonstrated inability to cooperate concerning the child
Matter of Velez v. Chandiramani, 2019-06750
The parties had physical altercations which led to the filing of family offense petitions and the issuance of at least one order of protection while they cohabitated for several years. The parties eventually ceased cohabiting and both petitioned for sole legal and physical custody of their child. Following a hearing, the Family Court issued an order awarding sole legal and physical custody of the child to the father, and set forth a parental access schedule for the mother. The mother appealed.
The Second Department found that, contrary to the mother’s contention, the Family Court did not err in awarding legal and physical custody of the child to the father.

The court found the father’s testimony to be credible and based on the totality of the circumstances, it found that he was the more stable parent and awarding custody to him was in the child’s best interests. Further, the court did not err in failing to award joint custody, “as the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child” (see Matter of Zall v. Theiss, 144 AD3d 831; Martin v. Martin, 139 AD3d 916; Matter of Florio v. Niven, 123 AD3d 708).

Family Court determination of custody had a sound and substantial basis in the record and will not be disturbed
Matter of Bonilla-Sanchez v. Flores, 2019-01102
In January 2018, the mother filed a petition seeking sole legal and residential custody of the child, who had been residing with her since birth. Following a hearing, the Family Court granted the mother’s petition, awarding her sole legal and residential custody of the child, with parental access to the father. The father appealed. “Given the court’s opportunity to make firsthand assessments of these crucial considerations, we accord great deference to its credibility findings and will not disturb them unless they lack a sound and substantial basis in the record” (Matter of Lopez v. Prudencio, 179 AD3d at 690-691, quoting Matter of Vaysman v. Conroy, 165 AD3d 954, 954-955). The Second Department found that the Family Court’s determination to award sole legal and residential custody of the child to the mother is supported by a sound and substantial basis in the record and will not be disturbed (see Eschbach v. Eschbach, 56 NY2d at 171-172; Matter of Lopez v. Prudencio, 179 AD3d at 691; Matter of Vaysman v. Conroy, 165 AD3d at 954-955).

 

Family Court order modifying mother’s parental access to require supervision was supported by a sound and substantial basis in the record
Matter of Lynch v. Fittipaldi-Lynch, 2019-03772
In 2002, the parties entered into a separation agreement, and subsequently a judgment of divorce was granted in Massachusetts. In 2015, the parties entered into a stipulation, which was so-ordered by the Family Court, Kings County, awarding sole physical custody of the parties’ child to the father with unsupervised parental access to the mother. The father filed a petition in 2018 in the Family Court, Putnam County, to modify that stipulation so as to limit the mother to supervised parental access. Following a hearing, the Family Court granted the father’s petition, finding, among other things, that several incidents relating to the mother’s health represented a change in circumstances and negatively impacted her ability to safely care for the child in an unsupervised setting. The mother appealed.

“An existing parental access order may be modified only ‘upon a showing that there has been a subsequent change of circumstances and modification is required’ to ensure that best interests of the child” (Family Ct Act § 467[b][ii]; see Matter of Lupo v. Raisford, 162 Ad3d 1031, 1033; Matter of Angelina L.C. [Michael C.-Patricia H.-C.], 110 AD3d 793, 795). On this appeal, the Second Department found that the Family Court’s determination that there had been a change of circumstances since the time of the so-ordered stipulation, and that it was in the child’s best interests that parental access with the mother be supervised by a third party or supervising agency, was supported by a sound and substantial basis in the record (see Family Ct Act § 467[b][ii]; Matter of Reilly v. Hager-Reilly, 166 AD3d 825, 827; Matter of Watson v. Maragh, 156 AD3d at 802).

Supreme Court erred in granting custody without report and testimony from court-appointed forensic evaluator where parties’ testimony was sharply conflicting; Judgment of Divorce reversed insofar as appealed
Markowitz v. Markowitz, 2018-11144
The plaintiff commenced this action for divorce and ancillary relief in 2016. The issues of equitable distribution were resolved in a stipulation of settlement, but the issues of custody and child support proceeded to trial. Prior to the trial, the Supreme Court directed a forensic evaluation to address each party’s parental fitness, capacity, and skills, and any alleged domestic violence. The forensic evaluation was complete, but the defendant did not consent to its admittance into evidence at trial. The plaintiff paid her pro rata share of the cost of the evaluator’s trial fees, but the defendant did not. Thus, the evaluator did not appear to testify at trial in the absence of full compensation. The plaintiff sought a two-week adjournment in order to secure the evaluator’s fee and produce him as a witness, however, the court denied the application.

Following the trial, the court awarded the defendant sole legal and physical custody of the child, with specified parental access to the plaintiff. In a judgment of divorce, the court, among other things, resolved the issue of custody in accordance with its decision and order after trial. The plaintiff appealed.

The Second Department agrees with the lower court’s appointment of a neutral expert to conduct the evaluations of the parties and the child since the value of such forensic evaluations is well-established in custody disputes (see Ekstra v. Ekstra, 49 AD3d 594, 595; Matter of Womack v. Jackson, 30 AD3d 433, 434; Stern v. Stern, 225 AD2d 540, 541). However, the court should not have denied the request for an adjournment to secure the evaluator’s testimony by compensation. Based on the sharply conflicting testimony, the testimony of the neutral forensic expert that the court had appointed “was material to resolving the issue of custody” (see Matter of James R.O. v. Cond-Arnold, 99 AD3d 801, 802; Ekstra v. Ekstra, 49 AD3d at 595-596). Further, the plaintiff was not at fault for the delay. The plaintiff’s inability to produce the witness was a result of the defendant’s failure to pay and the plaintiff exercised due diligence in attempting to secure payment (see Matter of Shepard, 286 AD2d at 337).

The judgment of divorce insofar as appealed from is reversed and the matter is remanded to the Supreme Court, Rockland County, for a new trial, at which the plaintiff shall be permitted to call the forensic evaluator as a witness. The court shall issue a new determination after considering the totality of the circumstances, including the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s development, the fitness of the parents, and the effect of an award of custody to one parent might have on the child’s relationship with the other (Reilly v. Hager-Reilly, 166 Add3d 825, 826). The court must also determine whether the allegations of domestic violence were proven by a preponderance of the evidence and, if so, “the effect of such domestic violence upon the best interests of the child” (Levitin v. Levitin, 167 AD3d 589, 590).

Family Court properly denied mother’s motion to vacate her default in custody modification proceeding where she failed to establish a reasonable excuse for her failure to appear
Matter of Mondelus v. Emile, 2019-02597
The father filed a petition to modify an order of custody so as to award him sole residential and joint legal custody of the parties’ child. Upon the mother’s failure to appear at the hearing, the Family Court granted the father’s petition. Subsequently, the mother moved pursuant to CPLR 5015(a)(1) to vacate that order, contending she had a reasonable excuse for her failure to appear in that she had a new child and was dealing with unspecific family issues, and that she had a potentially meritorious defense to the allegations in the petition. The court denied the mother’s motion, and she appealed.

The Family Court providently exercised its discretion in denying the mother’s motion, since she failed to establish a reasonable excuse for her failure to appear at a scheduled hearing (see Matter of Strnad v. Stevens, 166 AD3d 789, 789; Matter of Nwabueze v. Okafor, 166 AD3d at 781; Matter of Xiao-Lan Ma v. Washington, 127 AD3d at 983). Thus, her motion must be denied regardless of whether she presented a potentially meritorious defense (see Matter of Strnad v. Stevens, 166 AD3d at 789-790). Further, the mother’s contention that she was deprived of effective assistance of counsel is without merit since, viewed in totality, the record established that she received meaningful representation (see Matter of Eltalkhawy v. Eltalkhawy, 134 AD3d 707, 708; Matter of Haughton v. Tsang, 118 AD3d 883, 884).