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Matter of Andrea CC v Eric DD


NY Slip Op 07310

October 8, 2015

This is an appeal of the Family Court of Fulton City, which modified a prior custody order.

The Petitioner (mother) from Albany County and the Respondent (father) are the parents of a daughter. In 2012, the parties agreed to share custody. The parties agreed that any future modification would be based on what is best for the child.

In 2013, the mother filed a petition, asking for primary custody and a violation petition. The father responded by filing a petition asking for primary physical custody. The mother also filed another petition in Albany County, these were transferred to Fulton County. The father then filed a family offense petition. The father responded by filing a petition asking for primary physical custody. Following a hearing, the court awarded physical custody to the mother with visitation rights to the father, while still maintaining joint custody. All other petitions were dismissed. The Respondent appeals.

The father argues that granting physical custody to the mother was in error. The parties agreed that they didn’t need to show a change in circumstances to modify an order. The court’s inquiry depends on what is in the best interests of the child. When looking at this, the court will look at the parents past performance, their fitness to foster a health relationship with the child, and the ability to provide a stable home environment (matter of Teri v Elliot 122 AD3d 1092, 1093 [2014]. Also see the Matter of Alleyne v Cochran 119 AD3d 1100.

In addition to the above, the court will look at the credibility of the parties. While the father denies any agreement, the court believed the mother’s argument that they had previously agreed that the child would attend school in Albany County.

Also, the father misrepresented material facts regarding prior proceedings and the mother’s conduct. The mother was not made aware that their father was seeking custody.

While the custody laws in New York are sparse, Domestic Relations Law 70 does provide some guidance. It states that neither parent has a prima facie right to custody. The court will determine what is best for the child. This concept is also discussed in Domestic Relations Law 240.

Under normal circumstances, only the parents have the right to seek custody, unless there are extraordinary circumstances Bennett v. Jefferies 387 N.Y.S. 2d 821, 40 N.Y. 2d 53 (Court of Appeals 1976). The court has said that a parent cannot be deprived of custody absent extraordinary circumstances such as abandonment, surrender or neglect.

There is no distinction between physical and legal custody statutorily. Legal custody gives the parent the authority to make decisions for the child. Physical custody refers to where the child lives. A determination of custody will always include a visitation under order for the noncustodial parent.

The term “best interests” is often used, but there is no set definition what this means. These cases are very situation specific, and each will be determined on its merits. Generally, however, courts will look at the age of the parents, their relative health, whether there is any domestic violence present, the financial outlook of the parties, and if there are any pre-existing written agreements.

Other influencing factors that will be considered in determining custody include the proposed home environment, and the emotional stability of the parents Thomas J .D. v. Catherine K.D. 79 A.D.2d 1015 (2nd Dept. 1981).

The father showed lack of judgment when he enrolled the child in Fulton County, switched medical doctors, and enrolled her in family counseling. The father’s wife confronted the mother starting with a heated argument about a serious sunburn the child had gotten. Based on all the facts, the court states that this is in the child’s bests interests to allow joint custody, with the mother as having primary custody (Matter of Daniel TT 127 AD3d 1514, 1515 [2015]. Matter of Alleyne v Cochran 119 AD3d 1101.

Custody battles can be stressful. It is important to speak with a qualified lawyer from Stephen Bilkis and Associates to ensure that your rights are protected. We have offices to serve you throughout New York, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call us today to schedule a free consultation at 1-800-NYNYLAW.

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