The Law Offices of John Ferrara

FAQ’s


1. What should I have thought about before I meet with my lawyer?

It is never too early to consider what you are hoping to get out of the litigation. You, not your lawyer, decide the objectives of the litigation. 1 Are you seeking a particular schedule each week or month for the child to be with each parent? Are there specific safety concerns you want the court to address? Are you looking to move, or to prevent the other parent from moving with the child? There are many other potential objectives. But when you schedule a meeting with the lawyer, if you can state why you wish to meet, you are far more likely to leave with an understanding of how likely it is you will achieve this objective, and what work needs to be done to increase the odds of success.

Of course, as you discuss the case with your lawyer, you should feel free to modify your objectives though the consultation process. But if you know what you want of the litigation, the focus of your first few sessions can be on what steps need to be taken to present your best case to reach your objectives, and to consider the obstacles that you must overcome.

In addition to considering your objectives, you would be wise to review a primer such as this one to get a basic understanding of what facts and arguments courts in the past have considered when they have adjudicated custody cases.

First, this gives you ideas about what those courts found to be important. Chances are high that future courts will likewise find similar facts and arguments persuasive. Second, an honest review of prior cases will help you manage your own expectations. Custody disputes are painful cases – – what is more upsetting than learning when your child will not be in your care – – and as difficult as this may be, you need to understand the limitations imposed on your objectives.

2. Should I keep a diary?

The short answer is yes, but it needs to be a particularly type of diary to be of use. The truth does not determine the outcome of litigation; the outcome of litigation follows from the truth one can prove.

A diary that tells the lawyer of events but does not state who observed these events and how to contact the persons who observed these events (witnesses) serves little purpose. If the other parent did something awful to the child in front of witnesses, but we cannot produce those witnesses at trial, we may be unable to prove the event. If so, the truth (the awful conduct) is quite true. But it will not change the outcome of the litigation. We must prove the awful event for the court to consider the awful event to change the order.

The diary you keep should merely record events. The diary you keep needs to record who observed these events and how that person can be located months later when the case goes to trial. If your diary assists the lawyer prove the events favorable to your objective, your lawyer stands a better chance to achieve your objectives.

3. What is joint custody?

The legislature has not defined the term joint custody. The courts have instead given meaning to this term. Some courts have said joint custody means joint decision making. (Matter of Braiman v. Braiman, 44 N.Y.2d 584, 589–90, [1978]; Matter of Venable v. Venable, 122 A.D.2d 374, [3rd Dept. 1986]; Voelker v. Keptner, 156 A.D.2d 1014 [4th Dept. 1989]). Joint custody presupposes a sufficient working relationship between the parents that they can cooperate with one another. Should that relationship deteriorate, the courts can end the joint custody order. (Melody M. v. Robert M., 103 A.D.3d 932 [3rd Dept. 2013]). One court used a joint custody order to prevent one parent from committing the financial resources of another parent for activities for the child. (Conroy v. Conroy, 47 Misc.3d 1214(A) [Sup Ct. Monroe County 2015]).

A joint custodian’s unilateral decisions about matters of education, health care and religion could, if sufficiently severe, lead to a change in the custodial arrangement. (See, Seacord v. Seacord, 81 A.D.3d 1101 [3rd Dept. 2011]; Scialdo v. Kernan, 14 A.D.3d 813 [3rd Dept. 2005]).

Joint custodians must cooperate on questions that concern the child’s health, education, extracurricular activities, and religion. (McClean v. Bell, 35 A.D.3d 745 [2nd Dept. 2006]). Courts consider joint legal custody “is an aspirational goal in every custody matter,” but such an award is “not feasible where … the parties’ relationship and history evidences an inability to work and communicate with one another in a cooperative fashion.” (Stephen G. v. Lara H., 139 A.D.3d 1131 [3rd Dept. 2016]).

If the parties cannot reach an agreement on issues pertaining to the child’s health, education, extracurricular activities, or religion, courts appear to have three choices. First, the Court may grant sole custody to one parent with reasonable visitation rights to the other. Secondly, the Court may decide the educational issue on behalf of the parents. Thirdly, the Court may give the decision-making power on this issue to one parent. (Hight v. McKinny, 164 Misc.2d 983 [Family Court, Herkimer County 1995]).

In a case where the court found that both parents were distrustful, prone to gamesmanship and habitually sought law enforcement to aid resolution of their disputes, the court did not award joint custody. (Driscoll v. Oursler, 146 A.D.3d 1179 [3rd Dept. 2017]).

In 1982, the New York legislature passed a joint custody bill that Governor Carey vetoed. (N.Y. Assembly Bill 10721). This bill would have established joint custody as the preferred arrangement to be given first consideration by the court. There is today no presumption either in favor of or against joint custody. There is, however, considerable commentary that joint custody is inappropriate in cases of domestic violence. (See, e.g., Monachino, Violent Relationships and the Ensuing Effects on Children: Should New York Adopt a Rebuttable Presumption Against Awarding Custody to Batterers?; 22 Buff. J. Gender, L. & Soc. Pol’y 121 [2013],; Ettinger, Domestic Violence and Joint Custody: New York is Not Measuring Up, 11 Buff. Women’s L. J. 89 [2004]).

4. How does a court decide child custody?

Neither parent has a greater right than the other parent to the custody of the child. (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93 [1982]). The best interests of the child is the paramount concern in a custody proceeding. (Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1982]).

In trying to decide how to present a custody case, we must always remember “[t]he only absolute in the law governing custody of children is that there are no absolutes.” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93 [1982]). Still, the Appellate Courts have set forth factors they tend to consider when they determine a custody dispute. These are “the parents’ ability to provide a stable home environment for the child, the child’s wishes, the parents’ past performance, relative fitness, ability to guide and provide for the child’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.” (Matter of Rundall v. Rundall, 86 A.D.3d 700, 701 [3rd Dept. 2011]). This language just quoted appears repeatedly in Appellate Division cases, strongly suggesting that an effective custody presentation will show each of these factors favors the result one seeks to achieve. Cases using the just quoted language are: Herrera v. Pena-Herrera, (146 A.D.3d 1034 [3rd Dept. 2017]); Robert B. v. Linda B., (119 A.D.3d 1006 [3rd Dept. 2014]; King v. Barnes, 100 A.D.3d 1209 [3rd Dept. 2012]; Roberta GG v. Leon HH, 99 A.D.3d 1057 [3rd Dept. 2012]; Barker v. Dutcher, 96 A.D.3d 1313 [3rd Dept. 2012]; Jeannemarie O. v. Richard P., (94 A.D.3d 1346 [3rd Dept. 2012]); Raynore v. Raynore, 92 A.D.3d 1167 [3rd Dept. 2012]).

Additionally, a preexisting custody arrangement established by agreement is a weighty factor, but is not absolute (Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1982]).

It is therefore important for both the client and the lawyer to consider what facts they have and can present to demonstrate “the parents’ ability to provide a stable home environment for the child, the child’s wishes, the parents’ past performance, relative fitness, ability to guide and provide for the child’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.”

5. What do the courts mean by the parents’ ability to provide a stable home environment for the child?

One court approved of a home environment where the parent owned a home in which the child has his own room, his own bed, and age-appropriate toys. It contrasted the other parent’s home as a chaotic living arrangement that put the child in regular contact with a half-sister who abuses drugs and a home that was infested with fleas. (Braga v. Bell, 151 A.D.3d 1924 [4th Dept. 2017]). Despite the child’s wish to live in the second home, the Braga court held the first home was more consistent with the child’s best interests.

Likewise, in Driscoll v. Oursler, (146 A.D.3d 1179 [3rd Dept. 2017]), the court noted that the mother changed jobs often, did not have steady housing, and lacked transportation. The father held the same job for five years, had stable housing and was living with his paramour and child. The father’s more stable environment lead to an award of sole custody to the father.

In Fritts v. Snyder, (139 A.D.3d 1143 [3rd Dept. 2016]), the court noted the father’s more consistent schedule and employment. It concluded the father is better able to provide a more secure and stable environment for the child. Fritts involved a mother with a serious alcohol abuse history and a father who wrongfully withheld the child from the mother.

A parent living in a hotel will be at a relative disadvantage to more permanent housing. (Lawton v. Lawton, 136 A.D.3d 1168 [3rd Dept. 2016]).

A parent’s frequent relocations can lead to a custodial determination favorable to the other parent. (Smithey v. McAbier, 144 A.D.3d 1425 [3rd Dept. 2016]).

Where the father faced imminent eviction and had no post-eviction plan, the court awarded custody to the mother. (Berezny v. Raby, 145 A.D.3d 1356 [3rd Dept. 2016]).

A frequent fact pattern that falls within this factor is the evil step-parent. In Paul CC v. Nicole DD, (151 A.D.3d 1235 [3rd Dept. 2017]), the stepfather mixed alcohol with medication and was violent against the mother which lead the court to award custody to the father.

6. What do the courts mean by the child’s wishes?

The courts lose jurisdiction to decide custody or to tell a child where her or she must live when the child reaches age 18.

But as a child ages and matures, his or her voice receives greater weight. In Maxwell v. Watt, 152 A.D.3d 693 ([2nd Dept. 2017]), the court wrote “[t]he wishes of the child are not controlling but are entitled to great weight where the child’s age and maturity would make the child’s input particularly meaningful.” Another court phrased the same thoughts slightly differently: “Although not determinative, the expressed wishes of the children are some indication of what is in their best interests, considering their age, maturity and potential to be influenced.” (Cheryl Y v. Cynthia Y, 152 A.D.3d 829 [3rd Dept. 2017]).

In Braga v. Bell, (151 A.D.3d 1924 [4th Dept. 2017]), the court disagreed with the wishes with the child. The court noted the child was young.

In Cook v. Cook, (142 A.D.3d 530 [2nd Dept. 2016]), the court considered the views of a twelve year old, although there were other factors favoring the position desired by the child. (Rivera v. LaSalle, 84 A.D.3d 1436, 1439), noted that a mature nearly eleven year old child’s unequivocal wish was, at minimum, “entitled to consideration.”

In most cases where the court agrees to the custodial arraignment favored by the child, it notes other factors that also favor that custodial arrangement. (See Matter of Jennifer BB. v. Megan CC., 150 A.D.3d 1340, 1341, 53 N.Y.S.3d 725 [3rd Dept. 2017] [where domestic violence, mental illness and other factors favored the same result sought by the child]; Bush v. Miller, 136 A.D.3d 1238 [3rd Dept. 2016] [where the mother’s serious alcohol dependence favored the same result sought by the child]).

In Oscar S v. Joyesha J, (149 A.D.3d 439 [1st Dept. 2017]), all four children expressed their wish to live with their mother. Yet the courts ruled against them. The court noted the mother made a false sexual abuse allegation against the father and she did not produce the children for scheduled visitation.

In a case brought to change a court order based upon the wishes of a child, Yeager v. Yeager, (110 A.D.3d 1207 [3rd Dept. 2013]) wrote that “[a]though a child’s wishes can support the finding of a change in circumstances, they are but one factor and are not determinative.”

7. What do the courts mean by the parents’ past performance?

A history of substance abuse addiction by a parent can effect his or her relative fitness negatively. Still, a parent doing well in treatment can mitigate the negative of this factor. (Spoor v. Carney, 149 A.D.3d 1209 [3rd Dept. 2017]).

Further, if the substance abuse is remote in time, it could be irrelevant. (Snow v. Dunbar, 147 A.D.3d 1242 [3rd Dept. 2017]).

8. What do the courts mean by the relative fitness?

William BB v. Melissa CC, (136 A.D.3d 1164 [3rd Dept. 2016]) turned on relative fitness, as the court saw the parents on even footing on all other factors. As to relative fitness, the father had three prior felony DWI convictions, but was engaged in, among other things, outpatient therapy, had attained an extended period of sobriety in the past and had an extensive network of individuals to provide transportation until he was able to apply for a conditional license. Yet the court found the father to be the better choice because the mother tried to “sabotage” the child’s education when, despite the child’s ongoing academic issues, she (1) took the child out of school for at least three days in order to participate in a family vacation, and (2) allowed the child to miss two final exams at the end of the school year.

Schedules sometimes matter here. If one has a flexible schedule to allow him or her to care for the children when they are out of school, courts sometimes view this favorably. (Snow v. Dunbar, 147 A.D.3d 1242 [3rd Dept. 2017]). Likewise, in Herrera v. Pena-Herrera, (146 A.D.3d 1034 [3rd Dept. 2017]), where the child lived her entire life in Sullivan County and the mother worked in Queens, her schedule including her long commutes, supported a custody determination to the father.

Although she had been the primary caregiver most of the children’s lives, the court in Daniel TT v. Diana TT, (127 A.D.3d 1514 [3rd Dept. 2014]) had doubts about her parental judgment and fitness. The mother “shoplifted while the children were in her care and, at times, used them to aid her in those endeavors.”

9. What do the courts mean by the ability to guide and provide for the child’s overall well-being?

Although the court did not mention this factor in Daniel TT v. Diana TT, (127 A.D.3d 1514 [3rd Dept. 2014]), the mother’s use fo the children to assist in shop lifting calls into question her ability to guide the children or to provide for their well-being.

A parent’s failure to cooperate with the child’s allergist to help determine whether the source of a serious allergic reaction is inconsistent with the duty to provide for the child’s overall well-being. (See, Rosetta BB v. Joseph DD, 125 A.D.3d 1205 [3rd Dept. 2015]).

10. What do the courts mean by the and the willingness of each parent to foster a relationship with the other parent?

In Oscar S v. Joyesha J, (149 A.D.3d 439 [1st Dept. 2017]), the trial court found that the mother was “single-minded in her determination to keep the children away from the father … [and that she] did not consider the father to be an important part of the children’s lives.” The mother made a false sexual abuse allegation against the father and she did not produce the children for scheduled visitation. Despite the fact the mother was the primary caregiver and all four children wished to live with the mother, the court awarded sole physical and legal custody of the children to the father.

In Smithey v. McAbier, (144 A.D.3d 1425 [3rd Dept. 2016]), the court noted the mother “hindered the father’s visitation with the child, while the father has not made any similar efforts to thwart the mother’s relationship with the child.” The court awarded custody to the father.

Although hardly the only reason for an award of custody to the mother, the Andrea CC v. Eric DD, (132 A.D.3d 1028 [3rd Dept. 2015]) court noted with disapproval that the father “repeatedly placed telephone calls from the mother on speaker phone for family members and neighbors to hear.”

One clear example of the potential consequences of a parent not fostering a positive relationship with the other parent appears in *. The court wrote:

The mother had attempted to foster a relationship between the father and the child, while the father interfered with the mother’s relationship with the child by, inter alia, blatantly and repeatedly violating the court’s directive not to discuss the litigation with the child, repeatedly telling the child that the mother was irresponsible and unintelligent, and limiting the mother’s access to the child or placing absurd restrictions on such access. It is well settled that a ‘concerted effort by one parent to interfere with the other parent’s contact with the child is so inimical to the best interests of the child … as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent. (Internal quotations eliminated). (See also, Phillips v. Phillips, 146 A.D.3d 719 [1st Dept. 2017]).

11. Do courts try to keep siblings together?

The “application of the traditional preference for keeping siblings together has become more complicated as a result of changes in family dynamics” (Matter of Brown v. Akatsu, 125 AD3d 1163, 1166 [3rd Dept. 2015]).

In Nathaniel G v. Cezniea I, (151 A.D.3d 1226 [3rd Dept. 2017]), the court cited the general rule that there is a preference to keep siblings together, before separating the children. The court noted that the 15 year old son refused to live with the mother (and that he was physically strong enough to assert his will) while the daughter thrive within her mother’s care.

The court in Carpenter v. La May, (241 A.D.2d 625 [3rd Dept. 1997]) cited the general rule that the separation of siblings is discouraged before it noted that two months earlier, the parties agreed to the separation and saw insufficient change of circumstances to unit the siblings.

12. Are custody orders final, or can the court change them?

Sometimes after a court issues a custody order, things change. “The party petitioning to modify a custody order bears the burden of demonstrating first, that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order.” (David ZZ v. Suzane A., 152 A.D.3d 880 [3rd Dept. 2017] quoting (Matter of Smith v. McMiller, 149 AD3d 1186, 1187 [3rd Dept. 2017]).

There is thus a two part test. First, the party seeking to change the order must show that some relevant circumstance has changed since the prior order. In Michael YY v. Michell ZZ, (149 A.D.3d 1284 [3rd Dept. 2017]), a parent’s release from jail was not sufficient to change custody. Second, the party seeking to change the order must show the child’s best interest requires a modification.

Other courts phase the test slightly differently. Modification of an existing custody order is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the child. (Maxwell v. Watt, 152 A.D.3d 693 [2nd Dept. 2017]). While there is little substantive difference in the formulation of the standard, this formulation really collapses the two parts into one part.

Courts are also more willing to modify a custody order that was reached by stipulation than one reached after a full trial. (Tracey L. v. Corey M., 151 A.D.3d 1209 [3rd Dept. 2017]).

A common change in circumstances occurs when a schedule must be adjusted for a child about to enter school. (Ehrenreich v. Lynk, 74 A.D.3d 1387 [3rd Dept. 2010]).

Another common change in circumstances that the courts have found to be sufficient to change a custody order is the domestic violence in a parent’s home. (William EE v. Christy FF., 151 A.D.3d 1196 [3rd Dept. 2017]).

Frequent violations of the order, unilateral changes in the times of parenting time, and not providing information about the child have justified a change in custody. (Dorsey v. De’Loache, 150 A.D.3d 1420 [3rd Dept. 2017]; Crystal F. V. Ian G., 145 A.D.3d 1379 [3rd Dept. 2016] mother interfered with father’s parenting time; father harassed mother).

A serious deterioration in the relationship between the parents has deteriorated to the point where they simply cannot work together in a cooperative fashion for the good of their child[ ]. (Matter of Gerber v. Gerber, 133 AD3d 1133, 1136 [2015] [internal quotation marks and citations omitted], lv denied 27

NY3d 902 [3rd Dept. 2016]; Smith v. McMiller, 149 A.D.3d 1186 [3rd Dept. 2017]). Courts have ended joint custody when the parents cannot get along and communicate. (Emanuel SS v. Thera SS., 152 A.D.3d 900 [3rd Dept. 2017]).

Threats and harassment, along with a lack of communication, have supported a change in custody. (Cameron ZZ. v. Ashton B., 148 A.D.3d 1234 [3rd Dept. 2017]).

In Andrea C. v. David B., (146 A.D.3d 1104 [3rd Dept. 2017], the court found the parents had irreconcilable parenting philosophies. The court also noted that the father opposed and disrupted attempts to provide services for child. The court upheld a grant of sole legal and physical custody to the mother.

One argument in favor of maintaining the prior order is the desire for stability in a child’s life.

The decision to move from homeschooling to a traditional educational program has been sufficient to modify a custodial order. (Williams v. Williams, 151 A.D.3d 1307 [3rd Dept. 2017]).

13. What weight do the courts grant a preexisting custody arrangement established by agreement?

Preexisting custody arrangements that have been court ordered can be modified as set forth in the section on modifications. Sometimes, however, the parties have informally agreed upon a preexisting custody arrangements, perhaps for years, before the court first decides custody.

For example, in Thompson v. Thompson, (267 A.D.2d 516 [3rd Dept. 1999]), the parties signed a separation agreement that gave one spouse physical custody. They never converted the separation agreement to a divorce and for ten years did not litigate custody. The court gave deference to the agreement and stated “[a]ny modification of a preexisting custody arrangement will be made only upon a showing of a change in circumstances which reflects a definite need for modification to ensure the best interests of the children.” The appellate court then denied the father’s petition to change physical custody, but did make other changes to the order.

Sendor v. Sendor, (93 A.D.3d 586 [1st Dept. 2012]) appears to provide a different answer. The court set aside the parties’ Parenting Agreement and modified the parenting schedule. While the decision is quite short, it never discussed any change of circumstances and appears to have given the preexisting arrangement not ordered any weight.

What of preexisting custodial arrangements that are not formalized either in an order or a written agreement? Sometimes parents separate for years before anyone files anything in court. The parties in those cases often adopt an informal parenting schedule. Do these count as a preexisting custody arrangement?

While one can make a strong argument for deference to the preexisting custodial arrangement as it promotes stability the case law is sparse.

14. Can Grandparents win custody of their grandchild?

A parent has a claim of custody of his or her child that is superior to that of all others, absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances’ ” (Bennett v. Jeffreys, 40 N.Y.2d 543, 546 [1976]). A finding of extraordinary circumstances is rare, and the circumstances must be such that they drastically affect the welfare of the child. (Matter of Thompson v. Bray, 148 A.D.3d 1364, 1365 [3rd Dept. 2017]). “The burden of proof to make a threshold showing of extraordinary circumstances rests upon the nonparent, and only when that burden has been satisfied may the court turn to a custody analysis premised upon consideration of the child’s best interests” (Matter of Jennifer BB. v. Megan CC., 150 A.D.3d 1340, 1341, 53 N.Y.S.3d 725 [3rd Dept. 2017] [citations omitted]).

In evaluating whether extraordinary circumstances exist, factors the courts consider included “the overall length of time the child has lived with the nonparent and the quality of that relationship, the particular circumstances existing at the time [custody was awarded to] the nonparent, the length of time the parent allowed such [an] order to continue without attempting to assume the primary parental role and the specific provisions and conditions, if any, of [such] order” (id. at 862). (Campbell v. Campbell, 9 A.D.3d 620, 621-622 [3rd Dept 2004]; Matter of McDevitt v Stimpson, 1 AD3d 811, 812 [3rd Dept. 2003], lv denied 1 NY3d 509 [2004]).

With respect to grandparents, the legislature has enacted a statute that establishes an “extended disruption of custody” shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents.” (DRL §72-2-b). An extended disruption of custody of the child cared for by a grandparent constitutes an extraordinary circumstance. (DRL §72-2-a). We must understand that an interrupted disruption of custody for less than twenty-four months can still be extraordinary circumstances. (DRL §72-2-b). Further, and of some importance, this statute only applies to grandparents, not great grandparents (David M. v. Lisa M., 207 A.D.2d 623 [3rd Dept. 1994]; see also Matter of Hantman v. Heller, 213 A.D.2d 637 [2nd Dept. 1995]2).or step-grandparents.

Said differently, in a contest between a parent and a nonparent, the best interests of a child do not matter and the court should not consider the child’s best interest unless and until the nonparent proves the extraordinary circumstances.

15. Can Grandparents win visitation of their grandchild?

To be added.

16. What rights do siblings have to custody or visitation of their siblings?

To be added.

17. What rights visitation does a step-parent have to a child once his or her relationship with the parent ends?

These question does not arise when there has been a legal adoption. And Generally speaking, where there has not been a legal adoption, the step-parent has recourse. But if the parent sought child support from the step-parent, at least one appellate level case has found a right of visitation for the step-parent. (Paese v. Paese, 144 A.D.3d 770 [2d Dept. 2016]).

In a fact pattern that is somewhat unusual, one lower court granted a former step-parent “tri-custody” with her former husband and the mother of the child. (Dawn M. v. Michael M., 55 Misc.3d 865 [Sup. Ct. Suffolk Co. 2017]). Here, the married couple could not conceive a child. Apparently with the approval of his wife for the purposes of having a child, the husband had sexual relations with another woman who gave birth to the child at issue. The wife’s medical insurance covered the mother’s prenatal medical care and delivery.

18. Can a custodial parent move with the child?

Relocation cases pit the interests of a custodial parent who wishes to move away against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. (Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996]). The Court of Appeals eschewed any single factor to be treated as dispositive or given such disproportionate weight as to predetermine the outcome of a relocation case. (Tropea v. Tropea, 87 N.Y.2d 727, 738 [1996]). The court said in some cases, “the loss of midweek or every weekend visits necessitated by a distant move may be devastating to the relationship between the noncustodial parent and the child.” But the court also stated there are also “cases where less frequent but more extended visits over summers and school vacations would be equally conducive, or perhaps even more conducive, to the maintenance of a close parent-child relationship, since such extended visits give the parties the opportunity to interact in a normalized domestic setting.” The court held “each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.”. (Tropea v. Tropea, 87 N.Y.2d 727, 738-739 [1996]).

Tropea then listed several facts a court addressing a relocation case might consider. These include “the custodial parent’s stated reasons for wanting to move,” “the noncustodial parent’s loss of access,” “ the feasibility and desirability of a change in custody,” “the good faith of the parents in requesting or opposing the move,” “the child’s respective attachments to the custodial and noncustodial parent,” “the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship,” “the quality of the life-style that the child would have if the proposed move were permitted or denied,” “the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents,” and “the effect that the move may have on any extended family relationships.” (Tropea v. Tropea, 87 N.Y.2d 727, 740 [1996]). The court acknowledged that other factors might be relevant in other cases.

More than twenty years later, Tropea remains good law. Additional factors that courts have used to help decide relocation cases include the wishes of the child, (Turvin v. D’Agostino, 152 A.D.3d 610 [2nd Dept. 2017]), separation from half-siblings, (Turvin v. D’Agostino, 152 A.D.3d 610 [2nd Dept. 2017]),

A parent seeking to relocate should present a detailed plan to the court. One court noted the mother’s application to “relocate to Florida was less of a plan and more of an amorphous idea.” (Salena S. v. Ahmad G., 152 A.D.3d 162 [1st Dept. 2017]).

One thing a parent should not do is to relocate the child without advanced notice to the other parent. In Finkle v. Scholl, 140 A.D.3d 1290 [3rd Dept. 2016]), the parents worked out a roughly equal arrangement on their own. Then, without advance notice to the father, the mother withdrew the child from school and relocated with her from Delaware County to Saratoga County. In the ensuing litigation, the court awarded custody to the father.

A fact pattern that occurs often involves the parent who seeks to move to get away from alleged domestic violence. This often involves a credibility contest about whether the domestic violence is the real cause of the moving parent’s wish to leave, or feigned or an excuse to hide the moving parent’s real reason for moving. In Hill v. Dean, (135 A.D.3d 990 [3rd Dept. 2016])3, the court credited the mother’s claim that the father was controlling and verbally abusive throughout the relationship. The court concluded the record established “that the mother did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence and obtain the support of family members residing in North Carolina.” By contrast, in Jeannemarie O. v. Richard P., (94 A.D.3d 1346 [3rd Dept. 2012], the court did not credit the mother’s claim that she relocated to escape domestic violence. The court noted that several orders of protection had been dismissed. The lower court found the mother’s true goal in relocating was to minimize the father’s parenting time with the children and obtain a tactical. advantage in the divorce action. The court awarded temporary custody to the father.

19. What rights does a same sex partner have to a child conceived during a relationship with the biological parent?

These questions arise both when the same sex partners break up or when the partner who is the biological parent dies. While the legal problem may arise in other circumstances, these seem to be the most common.

These questions do not arise when there has been a legal adoption. If the same sex partner who is not a biological parent has adopted, then that same sex partner is a legal parent and can expect all the same rights and responsibilities as any other legal parent.

In 2016, New York’s Court of Appeals radically changed the law on this question. In Brooke S.P. v. Elizabeth A.C.C, (28 N.Y.3d 1[2016]), the court overturned an earlier case held “a partner without a biological or adoptive relation to a child is not that child’s “parent” for purposes of standing to seek custody or visitation.”

Brooke S.P. did not say all partners can seek custody or visitation. But Brooke S.P. did say that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody.”

The outcome of these case will turn on the evidence presented to show the parties did or did not agree to conceive a child and to raise the child together.

Facts the court considered to answer the question included (1) where the partners in a committed relationship at the time of conception; (2) did the non- biological partner attend prenatal visits; (3) did the child take the non-biological partner’s surname; (4) did the non-biological partner take family leave upon the birth of the child; (5) did the non-biological partner stay home from work when the child was young; (6) whether the non-biological partner pays child support; and (7) did the child refer to the non-biological partner by a parent reserved name such as “mommy.”

While Brooke S.P. considered a lesbian couple, the same rules appear to apply to a gay male couple. (Matter of Frank G., 142 A.D.3d 928 [2d Dept. 2016]).

The Brooke S.P. court left open a very important question: when a biological or adoptive parent consents to the creation of a parent-like relationship between his or her partner and child after conception, does the partner have the right to seek custody or visitation? We should anticipate that the courts will examine many of the same factors, but at this point it is too early to know how they will rule.

Should the same sex partner not be able to show the parties agreed to conceive the child together, the same sex partner would have to show extraordinary circumstances and then best interest to achieve custody. (See Matter of Jennifer BB. v. Megan CC., 150 A.D.3d 1340, 1341, 53 N.Y.S.3d 725 [3rd Dept. 2017]).


1 NY Rules of Professional Conduct 1.2-a.

2 Both of these cases pertain to visitation, also the subject of this statute.

3 The court acknowledged this was not strictly a relocation case as there was no prior order of custody. (See, Varner v. Glass, 130 A.D.3d 1215 [3rd Dept. 2015]). The court noted, however, a “parent’s decision to move to a distant location and the effect of any alleged domestic violence are significant considerations that must be taken into account in determining a child’s best interests.”

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