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Recent Appellate Division Family Law Decisions- November 13, 2013

On November 13, 2013, the Second Department decided the following New York Family Law cases:

Carter v. Carter: The Court denied the mother’s request to relocate to Florida because she failed to establish that the proposed move would not have a negative impact on the children’s relationship with their father. Furthermore, the Court found joint custody to be appropriate because the parties were relatively stable, amicable parents who could behave in a mature civilized fashion. Although they had disagreements, they behaved in a relatively civilized fashion and were able to put aside their differences for the good of the children.

Khan-Soleil v. Rashad: In this action for modification of custody and visitation, the Court held that a custodial parent’s willful interference with a noncustodial parent’s rights to visitation is so inconsistent with the best interests of the child as to raise a strong probability that the offending party is unfit to act as a custodial parent. Here, the custodial parent allowed the child to call her ex-husband, rather than the child’s father, “daddy” or “dad” and listed her ex-husband’s name on the child’s birth certificate despite the knowledge of genetic testing. Because these actions were to the detriment of the child’s best interests, the court awarded sole custody to the father.

Vasquez v. Powell: The Court denied the mother’s petition for a downward modification of her child support obligation because she failed to show that there had been a substantial change in circumstances. While a parent’s loss of employment may constitute a substantial change in circumstances, the parent must demonstrate that they were terminated through no fault of their own and that they diligently sought to obtain re-employment commensurate with their earning capacity. If a parent voluntarily leaves their job, a substantial change in circumstances will not be found. Additionally, the Court held that deliberate interference by a parent with court-ordered visitation does not constitute a ground to cancel child support arrears. Only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights may child support be prospectively suspended.

Cortez v. Cortez: To warrant modification of a child custody arrangement, there must be a change in circumstances such that modification is required to protect the best interests of the child. The best interests of the child are determined by a review of the totality of the circumstances. In this case, the father failed to establish that a change in custody was in the best interests of the parties’ son in light of evidence as to the child’s emotional distress during a period of time when he lived with the father, the evidence that the child was in need of certain professional treatment, and the father’s failure to consistently obtain such treatment for the child.


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