New York Divorce and Family Law Cases
The following New York law cases are provided for review, sorted by subject:
Appellate Law and Procedure
In Matter of Aho, the Court of Appeals ruled that the right to appeal from a non final order terminates when the final order or judgment is issued.
In Parochial Bus v Board of Ed, the Court of Appeals held there is no right to appeal from a judgment in that party's favor. But if the relief is incomplete, that party is still aggrieved under CPLR 5511. This definition was further refined in Mixon v. TBV.
Mixon v. TBV (Appellate Division 2nd Dept. 2010)
In Mixon v TBV, the Second Department provided a two prong test for determining aggrievement under CPLR 5511, holding that a party is aggrieved when they ask for relief but is denied in whole or part, or when relief against a party is requested by another party and it is granted in whole or part.
In Hecht v. City of New York, the Court of Appeals held that only a party who took an appeal has the right to obtain any appellate relief. A non appealing party cannot be granted relief in an appeal.
In Leeds v Leeds, the Court of Appeals sua sponte reviewed whether the appellant was aggrieved under CPLR 5511 and dismissed the appeal.
Wohl v. Wohl (Appellate Division 2nd Dept. 2006)
In Wohl v Wohl, an appeal was taken from a Quadro. The Second Department dismissed the appeal, as no appeal lies from a default. The remedy was to move to vacate the default or move to resettle the Quadro.
In Pramco III, LLC v. Partners Trust Bank, the Appellate Division dismissed the defendant's cross appeal as the defendant did not seek any affirmative relief and the plaintiff's relief was denied in its entirety. The defendant was not aggrieved under CPLR 5511. Merely disagreeing with the court's reasoning is not sufficient to grant standing to appeal.
In Rubeo v. National Grange, the Court of Appeals held that a dismissal of an appeal based on a failure to perfect it is a dismissal on the merits and will bar an appeal from a subsequent order on the same issues.
In Park East Corp. v. Whalen, the Court of Appeals held the additional time to file a notice of appeal under CPLR 5514, following the denial of an improperly filed motion seeking permission to appeal runs from the service of the order, and not the date of the order itself. This holding has not been consistently applied. See Retamozzo v. Quinones.
Ayen v. Sain (Appellate Division 4th Dept. 2011)
In Ayen v. Sain the notice of appeal had the wrong entry date for the order being appealed. The Fourth Department cured this defect using its discretionary powers authorized under CPLR 5520 and decided the appeal on the merits.
In Nicole J.R. v Jason M.R. the appellant used the wrong entry date in the notice of appeal. The Court cured this defect under CPLR 5520 and allowed the appeal to proceed on the merits.
Kubiszyn v. Terex (Appellate Division 4th Dept. 1994)
In Kubiszyn v. Terex the appellant timely served a notice of appeal, but it was rejected by the clerk because there was no pre-argument statement attached. The court enlarged the time to file the notice of appeal, on the basis that timely service was sufficient to establish appellate jurisdiction.
In M Entertainment v. Leydier the Court of Appeals held that the timely filing of a notice of appeal was sufficient to establish appellate jurisdiction, and thus the failure to serve the notice of appeal could be cured at the court's discretion under CPLR 5520.
In Dalton v. City of Saratoga Springs the Appellant filed a notice of appeal in a timely fashion under CPLR 5515, but failed to serve a copy. The Third Department held that the filing was sufficient to establish jurisdiction and declined to dismiss the appeal even thought the notice of appeal was not served.
Tina X v. John X (Appellate Division 3rd Dept. 2015)
In Tina X v. John X, the Third Department noted that no appeal as of right lies from a non final order issued by Family Court under FCA 1112. The Court declined to treat the notice of appeal as a motion and dismissed the appeal.
In the Matter of Angela M. Elacqua, the Third Department noted that no appeal as of right was permitted in Family Court from a non final order pursuant to FCA 1112. However, the Court treated the notice of appeal as a motion and granted leave to appeal using its discretionary powers.
Cuda v. Cuda (Appellate Division 4th Dept. 2005)
In Cuda v. Cuda, an appeal was taken from a QDRO by the filing of a notice of appeal. The Appellate Division noted that no appeal as of right lies from a QDRO. The Court treated the notice of appeal as a motion for leave to appeal and granted the motion and heard the appeal on the merits.
In Retamozzo v. Quinones, the First Department did not follow the Court of Appeals holding in Park East v Whalen, and dismissed an appeal as untimely, as it used the date of the order denying leave to appeal instead of using the date the order was served under the holding of Park East. This case is in direct contradiction to the Court of Appeals holding in Part East.
In Cornell v. T. V. Development Corp., the Court of Appeals held that when a lower court grantes some, but not all of the relief requested, accepting the benefit of partial relief does not affect the status of being aggrieved under CPLR 5511 and an appeal may be maintained.
Shifer v. Shifer (Appellate Division 2nd Dept. 2006)
In Shifer v. Shifer, the parties were divorced and an appeal was taken. The Appellate Division dismissed the portion of the appeal as to grounds, holding the preliminary conference order which resolved grounds acted as a waiver to any challenge and precluded appellate review. The remaining issues were decided on the merits and affirmed.
In Baecher v. Baecher the Appellate Division dismissed the appeal due to a lack of an appealable order. The order under appeal was on consent, and the appellate division noted the remedy was to move to vacate the consent order.
In Larkin-King v. King the Second Department dismissed an appeal based on a consent order. No appeal lies from a consent agreement, instead, the remedy is to move to set aside the agreement and appeal may be taken from that order.
In James v. Powell, the Court of Appeals held that when a defendant's answer is stricken as a penalty for non disclosure, an appeal may still be taken from the final judgment, despite CPLR 5701's provision that no appeal lies from a default.
In Finkelstein v. Lincoln Natl. Corp., the Second Department held that a defendant was not aggrieved under CPLR 5511 by an order adding another defendant to the action, since under Mixon the plaintiff did not seek a ruling against the original defendant. The appeal was dismissed for lack of aggrievement under CPLR 5511.
Loy v. Loy (Appellate Division 4th Dept. 2013)
In Loy v. Loy the Fourth Department, citing Cuda v. Cuda, noted that no appeal as of right lies from a QDRO. The Court treated the notice of appeal as a motion for permission to appeal, granted the motion and determined the appeal on the merits.
In Jones Sledzik Garneau & Nardone, LLP v Galit Schloss the appellant filed an untimely notice of appeal from a non final order which did not correctly identify the order being appealed. Six month later, the appellant filed a notice of appeal from the final judgment. The Second Department dismissed both appeals as untimely holding the time requirements to take an appeal under CPLR 5513 are jurisdictional and nonwaivable.
In Plowden v. Manganiello the Bronx Supreme Court held that a motion for a stay of enforcement under CPLR 5519 cannot be entertained until an appeal is actually taken. A notice of an intention to appeal is insufficient.
Rhodes v. Mosher (Appellate Division 4th Dept. 1985)
The Fourth Department in Rhodes v. Mosher provides a clear explanation and distinction between the relief available under CPLR 2201 and CPLR 5519. The appellant brought a motion in the Appellate Division seeking a stay of all trial level proceedings under CPLR 2201 and CPLR 5519. The motion was denied, as a motion for a stay of proceedings under CPLR 2201 may only be brought in front of the court where the action is pending, relief under CPLR 2201 may only be obtained in the appellate division from an order granting or denying a 2201 motion. Nor can a stay of proceedings be granted under 5519, as that provision only authorizes a stay of enforcement of the order under appeal.
In Seitzman v. Hudson River Associates the First Department restated and applied the three prerequisites necessary for obtaining a preliminary injunction. (1) the likelihood of success on the merits, (2) irreparable injury, and (3) the balancing of the equities
In Alexandru v. Pappas the Second Department applied the long standing three elements necessary to sustain a preliminary injunction. A demonstration of the probability of success on the merits, the danger of irreparable injury, and a balance of equities in its favor. The purpose of a preliminary injunction is to preserve the status quo.
Grisi v. Shainswit is one of the few published cases that address CPLR 5519, and held that the decision to grant or deny a stay of enforcement under CPLR 5519 lies within the discretion of the court.
In Schwartz v. Schwartz the Appellant failed to provide a sufficient record and transcripts for the appeal, resulting in the dismissal of the appeal.
In Zaikowski v. Monzon the Appellant failed to order and settle the transcripts. The appeal was dismissed.
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Residency Case Law
In Lacks v. Lacks, the Court of Appeals ruled that New York residency is not jurisdictional but is part of the cause of action for a divorce, and may only be challenged while the divorce is pending.
Stancil v Stancil (Supreme Court New York County 2015)
In Stancil v. Stancil the Supreme Court of New York County determined that no fault divorce under DRL 170(7) is not a cause of action, and therefore the one year residency provision under DRL 230(3) could not be established when DRL 170(7) is the basis for divorce.
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Divorce Grounds Case Law
A.C. v. D.R. (Supreme Court Nassau County 2011)
In A.C. v. D.R., the trial court ruled that there is no defense to no fault divorce filed under DRL 170(7). As such, there is no right to a trial on grounds. However, the court denied a motion for summary judgment on grounds, since the statute permits a judgment of divorce only when all ancillary issues are resolved. Contrast with Strack v. Strack.
The holding of Hessen v. Hessen was upheld by the Court of Appeals in Brady v. Brady, and continues to apply to divorce actions filed under the adoption of DRL 236 B's equitable distribution.
In Diemer v. Diemer the Court of Appeals ruled that the lack of sexual relations is to be constructively held to constitute abandonment.
Golub v. Ganz (Appellate Division 3rd Dept. 2005)
In Golub v. Ganz, the divorce was granted on the basis of adultery, despite the adultery occurring after the divorce action was commenced.
In Hessen v. Hessen, which was decided under pre equitable distribution law, held that in order to grant a divorce under cruel and inhuman treatment, longer marriages will be held to a higher standard of proof than a short marriage.
King v. King (Supreme Court, Kings County 1986)
The Supreme Court of Kings County denied a conversion divorce in King v. King. The plaintiff failed to substantially comply with the essential terms of judicial separation by failing to pay support in a timely fashion, and further failed to repair the roof of the marital premises as agreed.
Nahl v. Nahl (Appellate Division, 3rd Dept. 1989)
The court held in Nahl v. Nahl that in order to grant a conversion divorce, literal compliance with the terms of a separation agreement is not necessary if the essentials of the agreement are met
Stern v. Stern (Appellate Division 2nd Dept. 1985)
In Stern v. Stern, the Appellate Division held that while literal compliance with a separation agreement is not required, the support provisions are the essential duty imposed by the agreement, and the failure to comply with them precludes the use of the separation agreement as the basis for a conversion divorce.
Strack v. Strack (Supreme Court, Essex County 2011)
In Strack v. Strack, the trial court held that New York's new no fault divorce statute, DRL 170(7), simply added a new cause of action for a divorce, and did not preclude the right to a jury trial under DRL 173. Contrast with A.C. v D.R.C.
The Appellate Division held in Walczak v. Walczak that strained relations is insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment. As divorce was improperly granted by trial court, the marital property was not subject to equitable distribution.
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Child Support Case Law
Baraby v. Baraby (Appellate Division 3rd Dept., 1998)
In Baraby v. Baraby, the court held that when both parents have the child equal amounts of time, the parent with the greater income is deemed to be the non custodial parent under DRL 240 for CSSA compliance purposes. There can be no recoupment of overpayments of temporary child support by the non custodial parent.
The Court of Appeals held in Bast v. Rossoff that when calculating child support, joint custody awards must follow CSSA guidelines in calculation support; the parent who has child the majority of the time is the custodial parent for child support calculations.
In Boden v. Boden, the Court of Appeals held that in order to modify a child support order when there is an unmerged stipulation requires a showing of an unanticipated and unreasonable change in circumstances.
The holding of Boden was clarified by the Court of Appeals in Brescia v. Fitts, which held that a modification of child support will be granted if the child's needs are not being met without a showing of unanticipated and unreasonable change in circumstances as set forth in Boden v. Boden.
The Court of Appeals in Cassano v. Cassano held that New York child support guidelines may be applied past the then existing $80,000 cap without enumerating the factors in DRL 240 so long as a the court gives some basis for their application beyond the then existing $80,000 cap so as to permit appellate review.
Dallin v. Dallin (Appellate Division 2nd Dept. 1996)
In Dallin v. Dallin the Appellate Division noted that the former husband's agreement provided for a reduction of maintenance if his income dropped below $300,000 per year. The reduction of maintenance was granted but reduction of child support denied despite his drop in income, as it was not unanticipated and unreasonable.
Foxx v. Foxx (Appellate Division 3rd Dept. 1985)
The Appellate Division in Foxx v. Foxx held that no credit is given for overpayment on a temporary order of support.
The Court of Appeals held in Gravlin v. Ruppert that an unanticipated change in the father's relationship with his daughter created a need to modify the support agreement. The visitation agreement broke down through through no fault of either party, resulting in only the custodial parent providing support. In such circumstances, the Family Court should establish the support obligation of the non custodial parent by modifying the existing award.
The Appellate Division in Heverin v. Heverin held that a party seeking a downward modification of child support has the burden of establishing an unanticipated and unreasonable change of circumstance. Loss of employment may constitute such a change, but a downward modification may be denied where the moving party has not made a good faith effort to obtain employment commensurate with his or her qualifications and experience.
Imhof v. Imhof (Appellate Division 2nd Dept. 1999)
The Appellate Division in Imhof v. Imhof held that separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital. Non custodial parent entitled to credit for amounts contributed to the costs of child's education when the child lived away from home while attending college.
In Justino v. Justino, the non custodial parent who was directed to pay child support and contribute to college expenses was entitled to a provision reducing the level of child support or crediting the husband for any amounts he contributes toward college expenses when the children live away from home while attending college.
Kaplan v. Kaplan (Appellate Division 2nd. Dept. 2005)
The husband's income in Kaplan v. Kaplan was capped at 300,000 per year for CSSA calculations of child support, less maintenance award to wife and FICA deductions.
The Appellate Division held in Litwack v. Litwack that a non custodial parent is entitled to a credit towards child support for the amounts contributed to the costs of college education during periods when the children live away from home while attending college.
In Preischel v. Preischel, the Appellate Division granted a downward modification of child support granted. Petitioner showed unanticipated and unreasonable change in circumstances. Petitioner established that he lost his job through no fault of his own, made diligent efforts to seek employment, and that once he found a job, he filed an amended petition.
In Reinisch v. Reinisch, the Appellate Division held that the non custodial Parent is entitled to a reduction of basic child support for payments made to room and board when a child is attending college.
In Rodgers v. Rodgers, the Appellate Division held that retroactive payments of permanent maintenance are made only if the award is in excess of any temporary maintenance award. Denied credits for overpayments of temporary maintenance over the final award.
In Tompkins v. Chamberlin, the Support Collection Unit's objected to its own request for a COLA adjustment to child support, which triggered a de novo calculation of support which increased the father's support obligation. The Court of Appeals affirmed, despite mother's lack of a request for such a modification.
The Appellate Division in Vainchenker v. Vainchenker held that the husband entitled to a provision in the judgment of divorce reducing the level of child support or crediting him for any amounts he contributes towards college expenses when the child lives away from home while attending college.
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Legal and Expert Fees Case Law
Ahern v. Ahern (Appellate Division 2nd Dept. 1983)
In Ahern v. Ahern, the Appellate Division held that Pendente Lite requests for expert fees must set forth (1) the nature of the marital property involved; (2) the difficulties involved, if any, in identifying and evaluating same; (3) the services to be rendered and an estimate of the time involved; and (4) the movant's financial status.
In DeCabrera, the Court of Appeal ruled that neither necessity nor indigency is required to obtain an award of counsel fees under DRL 237. Instead, DRL 237 was designed to give the court broad discretionary powers in awarding counsel fees based upon the finances of the parties as well as all the other circumstances, including the merits of each party's position.
Prichep v. Prichep (Appellate Division, 2nd Dept. 2008)
The Appellate Division in Prichep held that it was improper for the trial court to defer a counsel fee award until trial, and granted the wife's request for pendente lite counsel fees. The wife should not be expected to deplete her finite resources when a counsel fee award would not substantially impact the husband's lifestyle. Any inequity in a pendente lite counsel fee award could be offset against the equitable distribution of the parties.
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Marital Agreements Case Law
In Graev v. Graev, the Court of Appeals held that the term "cohabitation" is ambiguous, and remitted the case back to Supreme Court for a hearing to determine the parties' intent.
In Matisoff v. Dobi, the Court of Appeals held that a marital agreement must be acknowledged and not simply notarized, failure to do so makes it invalid.
Christian v. Christian (Court of Appeals 1977)
In Christian v. Christian, the Court of Appeals established the standards of unconscionability to set aside a marital agreement.
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Maintenance Case Law
Arnone v. Arnone (Appellate Division 3rd Dept. 1997)
In Arnone v. Arnone, the Appellate Division denied an award of maintenance despite defendant having a limited work history. Defendant obtained a college degree while married, but made no effort to transition back into the work force despite deterioration of marriage.
The Court of Appeals held in Bliss v. Bliss that the clear language of DRL 248 imposes two requisites for the termination of alimony [to a former wife] in the absence of remarriage: (1) habitually living with a man, and (2) holding herself out as his wife. Habitually lived with another man by itself is insufficient to satisfy this two-pronged test.
Florio v. Florio (Appellate Division 3rd Dept. 2006)
In Florio v. Florio, the Appellate Division stated that DRL 248 requires both cohabitation and that the wife is holding herself out as his wife, although not married to such man. Both elements must be shown to terminate maintenance, and any attempt by Supreme Court to impose a less stringent requirement clearly would be erroneous.
Foxx v. Foxx (Appellate Division 3rd Dept. 1985)
In Foxx v. Foxx, the Appellate Division held that no credit is given for overpayment on a temporary order of support.
Garver v. Garver (Appellate Division 2nd Dept. 1998)
Garver v. Garver held that despite the failure of the divorce action, the trial court was still authorized to award permanent maintenance to the wife.
Iannone v. Iannone (Appellate Division 2nd Dept. 2006)
In Iannone v. Iannone, the Appellate Division held that the purpose of pendente lite maintenance is to tide over the needs of the less monied spouse and not to make a final determination of support. This ruling is no longer the standard under the new temporary maintenance formula.
The Court of Appeals ruled that a husband was entitled to a credit to offset the amount of pendente lite maintenance that exceeded his obligation under the final order. The offset was through equitable distribution. The Court of Appeals reiterated the long standing rule that no credit is given for overpayments of temporary child support.
Mora v. Mora (Appellate Division 2nd Dept. 2007)
In Mora v. Mora, the Appellate Division held that an award of maintenance properly denied due to wife's capacity to earn a living as a computer specialist despite being disabled, and that she had been awarded maintenance during the pendency of the action. Husband was responsible for the support of the parties' children of whom he has custody and his income was insufficient for him to provide for his own and their needs without assistance from his mother.
Orr v. Orr (United States Supreme Court, 1979)
The Supreme Court of the United States ruled in Orr v. Orr that gender based divorce statute which authorizes wives but not husbands, to be awarded alimony is unconstitutional.
The Appellate Division in Rodgers v. Rodgers held that retroactive payments of maintenance will be awarded only if the final award is in excess of any temporary maintenance award. Public policy is against any setoff or credits for overpayments when temporary maintenance exceeds a final award.
The Supreme Court issued a detailed analysis of the new temporary maintenance rules in Scott M. v. Ilona M. This decision articulates the problems in the temporary maintenance formula, and how these calculations are at odds with the revised laws for counsel fees.
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Equitable Distribution Case Law
Adamo v. Adamo (Appellate Division 2nd Dept. 2005)
The court in Adamo v. Adamo reiterated the rule that prior to the marital status being changed, and absent consent, courts lack the authority, to direct the sale of the marital residence owned by the parties as tenants by the entirety.
In Dolan v. Dolan, the Court of Appeals held that a portion of a disability pension is marital, equal to the value of what the pension would have been worth had the spouse not been disabled.
Elkus v. Elkus (Appellate Division 1st Dept. 1991)
The Appellate Division in Elkus v. Elkus held that an artistic career and celebrity status constitutes marital property subject to equitable distribution.
In Grunfeld v. Grunfeld, the Court of Appeals reversed the Appellate Division, as it engaged in double dipping in modifying trial court's distributive and maintenance award. Once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula.
The holding of Price was expanded by the Court of Appeals in Hartog v. Hartog. The court held that the non titled spouse need only show some contribution to classify appreciation of separate property as marital.
In Holterman v. Holterman, the Court of Appeals ruled that any formula that requires a deduction of a distributive award, including one made for future earnings, paid over a period of years from the licensed spouse's income for purposes of calculating child support is impermissible under the CSSA.
Lipton v. Lipton (Supreme Court, New York County 1986)
In Lipton v. Lipton the court found that engagement rings are separate property.
The Appellate Division held in Lisetza v. Lisetza that post-marital conveyance of separate property into jointly held title converts them to marital property.
In Majauskas v. Majauskas, the Court of Appeals held that vested pensions are marital property. This holding was expanded in later cases to include unvested and other retirement accounts.
In Mahnoney-Buntzman, the New York Court of Appeals ruled that payments and expenses made before a divorce is contemplated will not be second guessed by the court. Instead, the court will look to the assets and obligations that exist when the marriage is at an end. A student loan taken out during the marriage and paid in full using marital assets will be divided between the parties. The court also ruled that a party in litigation may not take a position contrary to a position taken on a tax return.
In McSparron v. McSparron, the Court of Appeals rejected the merger doctrine of Marcus, and held that a professional license and practice do not merge. Instead, both must be valued.
Meier v. Meier (Appellate Division 2nd Dept. 1989)
Following a jury trial which granted a divorce on the grounds of cruel and inhuman treatment, the Appellate Division in Meir v. Meir reversed. Since the divorce was denied, the equitable distribution made by the trial court was vacated.
Nehorayoff v. Nehorayoff ruled that wedding gifts other than those which are peculiarly adaptable to the personal use of either spouse, and those gifts which are specifically and unequivocally 'earmarked' as intended exclusively for the one or the other of the spouses, commonly intended for general use in the household, are the joint property of both parties to the marriage and are therefore marital property subject to equitable distribution.
Newell v. Newell (Supreme Court, Queens County 1983)
In Newell v. Newell, the Supreme Court held that the value of the marital part of a disability pension is the present value less the value of the separate portion.
The landmark case of O'Brien v. O'Brien created a new concept of marital property when the Court of Appeals found that professional Licenses are marital property subject to equitable distribution under DRL 236 B. Direct awards under the O'Brien ruling was legislatively overruled in 2016 by an amendment to DRL 236 B(5), but indirect awards of enhanced earnings and licenses were expressly authorized.
The Court of Appeals in Price v. Price held that appreciation of separate property is marital to the extent it results from the contributions of the non titled spouse. Holding expanded by Hartog.
Raviv v. Raviv (Appellate Division 2nd Dept. 1989)
In Raviv v. Raviv, the court held that property acquired during the marriage is presumed to be marital, this burden may be rebutted by the party seeking to show it is separate.
In Robertson v. Robertson, the court held that when separate property is contributed towards marital property, a credit should be given equal to the value of the separate property prior to the equitable distribution of that asset.
Sedgh v. Sedgh (Supreme Court, Nassau County 1989)
The Supreme Court of Nassau County in Sedgh v. Sedgh ruled that Domestic Relations Law § 236B does not authorize disposition of any asset under equitable distribution, including a marital home, prior to the severance of the marriage.
The Appellate Division in Walczak v. Walczak held that strained relations are insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment. As divorce was improperly granted by trial court, the marital property was not subject to equitable distribution.
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Custody Case Law
Adams v. Franklin (Appellate Division 3rd Dept. 2004)
In Adams v. Franklin, the Appellate Division held that modification of custody requires showing of substantial change in circumstances to insure best interests of child. Factors considered - length of current arrangement, fitness parents, ability to provide for child's development. Deterioration of relationship may constitute change in circumstances. Mother interfered with father's access to the child, made poor personal choices which affected child. Trial Court given great deference on appeal due to judge's ability to assess credibility of witnesses.
Aldous v. Aldous (Appellate Division 3rd Dept. 1984)
Court's view on religious beliefs constitutionally proscribed as basis for deciding custody. Aldous v. Aldous was affirmed on other grounds. Record showed abundant evidence to support determination of custody. Trial court's analysis of other factors fully supported in the record negated any implication that religion was an issue.
In Auffhammer v. Auffhammer, the Appellate Division ruled that informal custodial arrangements are one factor to be weighed in determining custody on the basis best interest given the totality of the circumstances. Mother, while not unfit, was less fit than the father, and had less concern for the emotional well-being the children than for her own life style. Evaluating the testimony is best left to the nisi prius court, which had the opportunity to see and hear witnesses.
In Bennett v. Jefferies, the Court of Appeals held that a non parent may be granted custody over a parent only upon a showing of extraordinary circumstances.
In Bergson v. Bergson, the Appellate Division held that it was error to award joint custody when relationship between the parties is acrimonious. Error to allow 15 year old child to freely decide with whom he will live and for how long. Such discretion would make child the focal point of family discord and subject him to undue pressure. Child's wishes do not appear to have been based upon impulse, whim, or pressure, therefore preference entitled to great weight.
Bishop v. Lansley (Appellate Division 3rd Dept. 1984)
The Appellate Division in Bishop v. Lansley ruled that it was error to award joint custody when parents are unable to communicate and make rational, joint decisions. As children resided for an extensive time with petitioner and as there is no indication that a change would significantly enhance the children's well-being, the stability resulting from continuing the present arrangement is an important consideration.
Blank v. Blank (Appellate Division 4th Dept. 1986)
In Blank v. Blank, the court held that a parent's infidelity will be a consideration in a custody dispute only if it adversely affects the child's welfare. Trial court was heavily influenced by the mother's extramarital affair in denying her custody, despite that she was not neglectful of her children or unfit to handle the responsibilities of parenting.
The Court of Appeals in Braiman v. Braiman found that domestic relations law 240 grants the courts authority to award joint custody.
Coakley v. Goins (Appellate Division 2nd Dept. 1997)
The Appellate Division in Coakley v. Goins held that the record demonstrated that child thrived in the care of the father and members of his family since he obtained temporary custody, both the psychologist and law guardian recommended that the father retain custody.
Court transferred custody to father from mother, despite mother being primary caretaker of them. In Eastman v. Drennen, the court found that both parties showed sincere affection for their children, and mother attended to all their basic needs. However, she blocked the exercise of visitation rights by father numerous ways, the most dramatic being false child abuse accusations which subjected the four year old daughter to invasive and traumatic physical examination. While the longevity of mother's care is in her favor, her immaturity gravely reflects on her ability to handle the emotional development of the children. The likeliest assurance that the best interests of the children are served by awarding custody to father.
In Eschbach v. Eschbach, the Court of Appeals held there are no absolutes in making a custody determination, there are policies which do not bind the courts but guide them in determining what is in the best interests of the child. When the parties have entered into a custody agreement, it is not as an absolute but as a weighty factor, and an agreement is but one factor to be weighed by the court in deciding whether a change of custody is warranted. Trial court was not bound by the stipulation of the parties but was required to review the totality of the circumstances to determine what would be in child's best interests.
The Appellate Division, 2nd Dept. held in Entwistle v. Entwistle that the intentional withholding of children in violation of a visitation order and relocation to another state without permission or court order warrants a hearing for contempt and possible change in custody.
The Appellate Division held in Frank R. v. Deborah Ann R. that the best interests of the children served by changing custody from their mother to their father. Court did not follow court appointed psychologist who recommended that custody remain with the mother. His recommendation was partially misrepresentations made to him which would have affected his recommendation. The mother substantially interfered with the relationship between the children and their father, frequently denying him visitation, telephone contact, and unsuccessfully tried to bar the father from attending each child's "First Holy Communion" ceremony.
In Friederwitzer v. Friederwitzer, the Court of Appeals held the only absolute in the law governing custody of children is that there are no absolutes. Custody determined by circumstances and best interests of the child. No one factor is determinative. Stability is important, but disruption of change is determinative, the desires of the child are to be considered, priority given to the first custody awarded in litigation or by voluntary agreement, but prior agreement not absolute.
Grassi v. Grassi (Appellate Division 2nd Dept. 2006)
In Grassi v. Grassi, the Appellate Division held that a parent seeking a change in custody is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing.
Graham v. Graham (Appellate Division 3rd Dept. 2005)
The Appellate Division stated in Graham v. Graham that it was Improper for the law guardian to file a report or make a recommendation. Instead, the law guardian's job was to take a position which must be supported by the evidence on the record.
The Court of Appeals held in Harrington v. Harrington that marital fault may not be the decisive factor in the determination of custody.
Hatz v. Hatz (Appellate Division 3rd Dept. 1983)
In Hatz v. Hatz, the custodial mother was injured and became a paraplegic. Following a trial, the court continued mother's custody order, considering the effect of her disability as a custodial parent, as well as child's academic performance, social responses and activities, economic provision and child's wishes.
Custody transferred to father in Ingalls v. Ingalls upon a finding that the mother's new boyfriend was an alcoholic, that there were many quarrels between them, and that on occasions, mother was unable to provide heat or adequate food for children.
Jacobs v. Jacobs (Appellate Division 2nd Dept. 1986)
The Appellate Division held in Jacobs v. Jacobs that custody cannot be measured solely on a qualitative basis. Consideration must be given to the availability of a parent to tend to the children's needs and to participate in their development. Custody options which allow for the direct care and guidance of children by a parent rather than by third parties are naturally preferred.
Juneau v. Juneau (Appellate Division 3rd Dept. 1997)
Interference with visitation can be basis for finding custodial parent unfit for that role, in totality of the circumstances, but in Juneau v. Juneau, the court found that the defendant's violations were insufficiently egregious to warrant a change of custody. Family Court justified in concluding children's welfare would not be substantially enhanced by change in custody, such a change would be detrimental as it would create additional, and unnecessary, stress, anxiety and disruption in their lives.
Karen PP v. Clyde QQ, held that after a hearing with expert testimony, Family Court found that the allegations of sexual abuse were fabricated by mother, and granted sole custody to father with no visitation to mother until the Probation Department set up counseling and made a recommendation to the court. The court found that mother had programmed the child to make the sexual abuse allegations in order to obtain sole custody and deny access to father.
King v. King (Appellate Division 2nd Dept. 1996)
Awarding two children to one parent and the third child to the other is appropriate based on the best interests of the children. The Appellate Division in King v. King held that while splitting siblings is to be avoided if possible, that factor alone is not dispositive.
The Court of Appeals held in Lincoln v. Lincoln that an in camera interview with a child is appropriate during a custody proceeding.
Wishes of 15 year old child must be considered but are not dispositive. In McCrocklin v. McCrocklin, the Appellate Division stated that the court must be convinced that the child is not acting impulsively, capriciously, or pursuant to pressure exerted by one parent. The child failed to prosper in the mother's home, and had begun to mirror the mother's depression. Child's preference was based in part on the lack of discipline at her mother's house, and while this was appealing to a 15 year old, it was not in her best interests in the long run, when combined with negative reinforcement of depressive behavior.
In Pawelski v. Bucholz, the court held that a parent's infidelity or sexual indiscretions should be a consideration in a custody dispute only if it can be shown that such factor may adversely affect the child's welfare.
Roberts v. Roberts (Appellate Division, 3rd Dept. 1986)
The Appellate Division held in Roberts v. Roberts that a disparity in financial resources will not be a significant factor in determining custody when part of the reason is the failure to pay child support.
In Royea v. Hutchings, the Appellate Division modified a joint custody and granted the father sole custody upon finding that mother's home life had become "increasingly stressful and chaotic". Child was not thriving under present conditions, and the trial court concluded that father was capable of providing a more economically and emotionally stable home environment for the child.
Salk v. Salk (New York County, 1975) (Affirmed on Appeal)
In Salk v. Salk, the Supreme Court, New York County (affirmed on appeal without further opinion) held the fact that one parent is better able to offer the child adequate support than the other is not controlling in deciding custody. Custody may be awarded to the parent financially best able to care for the child's upbringing and education, and the lack of a permanent or suitable home or firm source of income may bar custody to the parent.
The Appellate Division held in Sandman v. Sandman that split custody of two children was proper. Twelve year old son remained with mother and there was no basis to disturb that arrangement. Fourteen year old daughter was estranged from mother and desired to live with father.
In Saunders v. Saunders, the Appellate Division reversed the trial court, holding that it improperly denied custody to mother based on her adulterous affair. The prospective educational opportunity a child has with each parent is a factor in determining custody.
In Schussler v. Schussler, the Appellate Division held that although the courts are often reluctant to separate siblings, continuation of a split custody arrangement found to serve the best interests of the children.
Sooy v. Sooy (Appellate Division 3rd Dept. 1984)
The Appellate Division held in Sooy v. Sooy that the failure to conduct in camera interview with child does not warrant a new hearing. No one factor controls in deciding custody and there are sufficient other factors to uphold trial court's decision. Any temporary disruption in child's life due to a change in residence is but one factor to be considered and is less important than child's long-term development.
In Thomas J.D. v. Catherine K.D., the trial Court awarded mother, who suffered from various mental illnesses, custody and directed that father to take custody whenever mother became disabled due to mental illness. In reversing, the appellate division sympathized with the mother but held that best interests and welfare of the child resolve custody disputes, not sympathy for the circumstances of the parent.
The Court of Appeals case of Tropea v. Tropea is the leading case on New York relocation. The old three tier approach to relocation was abolished. Relocation of a minor child will be determined by the best interests of the child.
Walden v. Walden (Appellate Division 2nd Dept. 1985)
In Walden v. Walden, the Appellate Division held Custody stipulation may be modified when the totality of the circumstances warrants a modification in the best interests of the children. Stability is a consideration but not determinative, nor is child's preference. Father's attempts to alienate mother significant factor in awarding custody to mother.
Williams v. Boger (Appellate Division 3rd Dept. 2006)
In a joint custody order, the trial court gave the mother the final say in the event the parties could not reach a mutual agreement. In reversing, the appellate division held in Williams v. Boger that such a directive is antithetical to the concept of joint legal custody, especially given the parties' history of cooperation, there was simply no basis upon which to award petitioner superior decision-making authority.
In Worowski v. Worowski, Joint custody was reversed on appeal as joint custody not favored when parents are severely antagonistic and embattled. Sole custody awarded to 54 year old mother with history of alcoholism. While not the perfect parent, she was deemed to be the more fit parent than the 74 year old father who is very rigid in his views, authoritarian in his discipline, bigoted in his views and delusional as to his status.
Young v. Young (Appellate Division 2nd Dept. 1995)
In Young v. Young, the Appellate Division held that a transfer of Custody from mother to father upon finding the mother was intentionally alienating the children from the father. In reversing, the Appellate Division noted the trial court failed to give reasons why it ignored the recommendation of the court psychologist and law guardian. Trial Court improperly followed mother's psychologist, who did not interview the father; such opinion is worthless.
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Jurisdiction to grant a Divorce Case Law
The Supreme Court in Williams v. North Carolina held that a court's jurisdictional basis to grant a divorce is based on domicile. A divorce which is granted by a court in which neither party is the domicile of is a nullity.
In Rosenstiel, the New York Court of Appeals held that New York will recognize a foreign divorce issued by a court of foreign jurisdiction where neither party is domiciled, provided that both parties appear and consent to that court's jurisdiction.
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