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Couple Get into Custody Dispute Due International Travel, New York Appellate Court Affirms Supreme Court Decision

C vs C

This case was filed for divorce and ancillary relief. The defendant appeals a prior judgment dated March 24, 2014. In that decision, the order denied the defendant’s cross-motion which was to use one-third of the child’s time spent in Israel visiting with the paternal grandmother. The prior decision also denied without prejudice the portion of the cross-motion which ordered visitation with the paternal grandmother when she was in the U.S.

This court affirms.

The couple was married in 1998 and their only child was born in 2001. The plaintiff filed this action in 2010 and had reached an agreement regarding custody. On December 14, 2011, the Supreme Court issued an order regarding custody.

Later in January, the plaintiff moved to compel the defendant to obtain a passport for the child. The plaintiff alleges that the defendant blocked this, unless it was agreed that the child could spend one=third of the time in Israel with the defendant’s family, but he was unwilling to assist with any travel expenses.

The defendant cross-moved that the plaintiff while in Israel, allocate time for the child to visit the paternal grandmother for no less than one-third of her time there. In addition, he requested that the plaintiff arrange for the child to visit the paternal grandmother when she was in the U.S.

The court requested that the parties come to some agreement outside of court but they were unable to.

The court held that a party seeking modification of an existing custody agreement must prove there has been a subsequent change in circumstances (Snowden v Snowden 162 AD3d 675, Matter of Wilson v McGlinchy 2 NY3d 375, 380). The main concern in these matters is always what is best for the child. The court must consider the totality of the circumstances in deciding a modification (Matter of Snowden v Snowden 162 AD3d 675, Esbach v Esbach 56 NY2d 167, 171).

Here, the court felt that in his requests, he failed to make that showing. He argues that the plaintiff curtailed the child’s visits with the grandmother, but those circumstances were one year prior to this current filing.

The existing visitation schedule didn’t contain any provision for the grandmother’s visits. While she opposes the one-third time request, she hasn’t refused meaningful contact between the grandmother and the child.

The Court of Appeals will let the decision of the Supreme Court stand.

May 15, 2019, NY Slip Op 03763

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