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Recent Appellate Division Family Law Cases- November 20, 2013

On November 20, 2013, the Second Department decided the following New York Family Law cases:

Anonymous v. Anonymous: In this case, the parties shared joint legal custody of the minor child with the mother having physical custody and the father having liberal visitation pursuant to their judgment of divorce. When the mother was undergoing surgery and needed time to recover, the parties agreed that the father would have temporary custody. The parties signed an agreement which stated that the father would have “primary physical custody of the child,” but the mother did not know that he intended this to be a permanent arrangement. The father petitioned the family court, without the knowledge or consent of the mother, to modify the judgment of divorce and award him physical custody relying on the parties’ agreement. The family court granted the father’s petition and awarded physical custody to the father. The mother promptly appealed to the Second Department which reversed the family court’s decision and awarded physical custody to the mother. The general rule is that in the absence of a subsequent change in circumstances, the court should defer to the agreement of the parties. However, no agreement can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest. Here, the court lacked a sound and substantial basis to award custody to the father. Instead, the child’s best interests would be served by awarding the mother sole physical custody. This was due to her role as the child’s primary caregiver throughout the child’s life, the father’s limited role in the child’s life, and the fact that the child was thriving both at home and at school with the mother. Furthermore, the court must consider the credibility of the parties by assessing their character, temperament, and sincerity. Here, it was impossible for the court to conduct this assessment because the mother was unaware of the proceedings and could not participate in them.

Villanti v. Grucci: A mother was properly awarded counsel fees in connection with her petition alleging that the father willfully violated an order of child support. Once the court makes a finding that the violation was willful, the family court is required to award counsel fees.


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