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Chicara v Chicara


NY Slip Op 01851

March 15, 2017


The father appeals a family court order from Queens Family Court dated 1/21/16. The order denies the father’s petition to enforce a visitation stipulation, modify custody provisions, ad alleged that the mother is in contempt for failing to comply with the provisions.

The court affirmed the order.

The parties in this action have two children. In October of 2013, they entered into a stipulation and agreed that the mother would have sole custody of the children, and they would reside full time with her. The father would have visitation on every 3d weekend each month, as well as some holidays.

The father consented to the mother moving to Pennsylvania with the children. In 2015, the father filed an action in family court, requesting that the visitation agreement be upheld, and modify custody where he would have sole custody. He requested that the mother be held in contempt of court. The family court denied the father’s petition for failure to state a cause of action. The father filed this appeal.

This court says that the family court correctly determined that the father’s petition failed to state a cause of action. The court says that custody arrangements can be changed when there has been a change in circumstances, and the change affects the well-being of the child (Family Court Act 652[a]; Matter of Gelfarb v Gelfarb; Matter of Dena v Lopez 140 AD3d 967).

A party seeking a modification is not entitled automatically to a hearing, but must make some showing proving a change in circumstances that are enough to warrant a hearing in the matter (Matter of Klotz v O’Connor 124 AD3d 662, Connor v Conner 104 AD3d 638, Matter of Paulino v Thompson 145 AD3d 726, Matter of Aronwhich v Franier 94 AD 3d 1114).

The family court was correct in denying the part of the father’s petition which sought to enforce the visitation provisions of the settlement because the allegations weren’t proven to the court (Palmiotti v Pascitelli 100 AD3d 637). The court was also correct in denying the portion of the father’s petition that alleges that the mother was in contempt for not complying with the agreed upon visitation schedule (Jaffee v Jaffee 44 AD3d 825, Brown v Mustry 55 AD3d 828).

A hearing is not necessary in every circumstance where contempt is alleged. A hearing only needs to be conducted if there is a factual dispute that can’t be settled (Jaffee v Jaffee 44 AD3d 826, Brown v. Mudry 55 AD 829). In this instance, the father didn’t submitted any evidence to prove his allegation that the mother didn’t comply with the provisions of the stipulation, therefore there is no issue of fact.

New York custody laws are in set out in any statute. They have evolved over time by court decisions. Custody cases are decided on a case by case basis.

Because there is no specific law outlining physical custody, the courts will look at a variety of factors in making their decision. They will consider things like age of the parents, availability to spend time with the child, the physical health of the parents, their finances and home environment.

Modifying custody is often difficult. The courts avoid emotionally driven reasons. There is a very limited set of circumstances where the court will agree to a modification. Ultimately, they will only agree to a modification when it is in the best interest of the child.

Some valid reasons for a modification include abandonment, neglect, the child requests it (and is older than 12), an agreement was established between the parents or the circumstances have substantially changed for one of the parties. Historically, courts only recognize situations where there has been a substantial impact on the child.

If you have a family legal matter, it is important to speak to a lawyer to ensure that your rights and the rights of your children are protected. Speak to the experienced lawyers at Stephen Bilkis and Associates for guidance and a free consultation. They have offices to serve you in Manhattan, Queens, the Bronx, Brooklyn, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today to schedule your appointment at 1-800-NYNYLAW.

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