The Appellate Division, Fourth Department has handed down a number of child custody decisions since the beginning of the year. Three of the cases detailed here follow what seems to be a recent trending of the appellate courts toward a broader interpretation of what constitutes “significant change in circumstances” and “best interests.” In contrast, the fourth case reinforces, yet again, the requirements established in a famous custody decision.
Eastman v. Eastman, 590 CAF 13-01114 (June 2014)
Although the Family Court failed to state whether there was a “change in circumstances to warrant a change in the existing [custody] arrangement … the court’s written decision reveals extensive findings of fact … which demonstrate unequivocally that a significant change in circumstances occurred.”
The court held that, “the mother’s various relocations had been made to further her own interests, rather than to benefit the child.” Additionally, the Attorney for the Child had not improperly substituted judgment because the child, who was seven years old and has Down syndrome, “lacked the capacity for knowing, voluntary and considered judgment.”
Cheney v. Cheney, 709 CAF 13-00347 (June 2014)
The Family Court switched primary physical custody from the mother to the father based on the mother’s interference with the father’s visitation rights. The mother “repeatedly took away the child’s cellphone, thereby preventing the father from communicating with the child by telephone, and that, on one such occasion, she made a video recording of the child’s tearful response.” The child also expressed a preference in living with the father, and the child’s emotional wellbeing deteriorated after the mother and child moved in with her boyfriend and his three children.
Miller v. Jantzi, 729 CAF 13-00448 (June 2014)
A split custody case in which the Appellate Court found such custody was in the best interests of each child. While shared physical custody of the younger child was possible because he was not yet enrolled in school, sole physical custody of the older child with the father was better because it allowed the child to remain in his school where he was doing well. Another point was that the visitation schedule allowed the brothers “substantial time together.”
Griffin v. Griffin, 985 NYS2d 393 (May 2014)
A nonparent custody case, this is yet another case in which the trial court skipped over the Bennett v. Jeffreys [40 NY2d 543] tenet that “between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.”
Unlike similar instances in which a hearing is held but the court grants custody to the nonparent based on a “best interests” test without first finding extraordinary circumstances, in this case there was no hearing at all. On the day set for the hearing, after asking the parents what witnesses they would be calling in support of their position and being told that they themselves were the only witnesses, the trial court granted the nonparent’s custody petition — stating that there were no triable issues of fact.
Reversing and remitting the matter to Family Court, the Appellate Court stated that the trial court “failed to place the burden of proof on the nonparent to prove that extraordinary circumstances exist.”
Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.