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#310 Third Department Caselaw Round-Up for February 23, 2012, Part 1 of 5

March 6, 2013

310 Post 02-23-12, Part 1 Third Department February.pngThe first case is yet another Article 78 proceeding. Wanna guess what happens to it? However, it is rather interesting insofar as the parent refusing to pay child support is ... an attorney. File this one away under Things You Really Don't Want To Do If You Want To Remain As An Attorney.

The second case is an example of what not to do if you want to avoid having your ex-spouse be awarded sole legal and sole physical custody of your children.


Case #168
#511658
Koziol v. Walsh-Hood
Article 78 proceeding transferred from the 4th Department
Issues: Child Support; Divorce; Willful Violations of Orders
Cited statutes: CPLR ยง506
Dismissed

Okay, you really need to check the link for this case. Go ahead, I'll wait. Notice something a bit strange about this one? Notice the many cases cited in the first paragraph? Anything odd strike you about those particular cases? Like, perhaps, the names of the various cases? Yeah. That alone should tell you in which direction this case is heading. It seems the attorney-father is a tad on the litigious side and doesn't like taking "no" for an answer. Why else would the Fourth Department feel compelled to get rid of this thing with the Third Department?

The father and mother of two children got a divorce with the mother, presumably, being granted primary physical custody of both children. The father is noted to be an attorney "whose license to practice law is currently suspended for, among other things, his willful violation of an order of support." Upon getting nowhere with appeals within the Fourth Department, the father then opted to file an Article 78 proceeding, presumably against the Fourth Department. This is effectively tantamount to saying "Gravity, I'll show you!" with the same, inevitable result.

The Third Department smacks him down accordingly, finding that the petitioner-father "has failed to demonstrate a clear legal right to relief sought or the absence of an adequate remedy at law so as to justify his various requests."

I'm guessing this is an example of what happens when an attorney goes through an extremely bitter divorce and then goes ballistic. Sometimes, when given the choice between doing something and doing nothing, it's better to do nothing.


310 Post-2 Chenango County.pngCase #169
#510773
In the Matter of Timothy N.
Chenango Family - Sullivan
Issues: Behavioral Issues; Best Interests; Change in Circumstances; Counseling; Credibility; Custodial Interference; Custody; Divorce; Evidence; Indicated Reports; Lincoln Hearings; Orders of Protection; Stipulation; Visitation
Cited statutes: FCA Arts. 6 & 8
Affirmed

This is an appeal from an order which dealt with fifteen (15) (!!!!!) proceedings. So buckle up and grab the popcorn. Sometimes, I swear, these cases have been scripted by aspiring screenwriters.

The parties are the divorced parents of three children, a daughter and two sons. They stipulated to a custody arrangement whereby the mother had the children for three weeks out of every month and the father had them for one week of every month, together with alternating weekends and Tuesday evenings. On the very next day (!!!) after the entry of the judgment of divorce, the father filed a petition seeking modification of custody based on the custodial interference of the mother. A flurry of petitions ensued. After a hearing, conducted over several days, including two Lincoln hearings, the court awarded the father sole legal custody of the three children and issued orders of protection against the mother for the benefit of the father and his girlfriend.

The mother appealed.

Interestingly, despite the filing of fifteen (15) petitions, the mother only appealed that aspect of the order which awarded sole custody to the father. The mother contended that the court improperly relied upon events occurring after the filing of the petition to modify custody and that those events that occurred before the filing were insufficient to find a change in circumstances. Um, no. The Third Department found that while the court's hearing entailed a review of all petitions, the court's analysis was nonetheless limited to the evidence concerning the respective parties prior to the filing of the first petition. Kudos to the trial judge for apparently limiting all proof to the date of filing of the first petition.

So, what did the otherwise extensive testimony reveal? Well, the mother engaged in extensive custodial interference with the father's access to the children. What did she do? Are you ready? She forced "the children to hide in her house to deny the father parenting time with them". She "refused to allow the paternal grandmother to pick up the children ... to deny or delay the father's visitation". She "frequently prevented the father from contacting the children by phone". She "threatened to change the children's surname to her own". She "refused to allow the daughter to bring her schoolwork along when visiting with the father, and the daughter's grades suffered as a result". She "cancelled after-school activities for the older son to prevent the father and his family from attending these events with the child". She admitted to "harassing the father with text messages, phone massages, and emails". She "cancelled mental health and dental appointments for the children that were scheduled during the father's visitation". She "refused to share medical, educational, and other important information about the children" with the father. She attempted to "block the children from speaking to the father and his family in public". At one point, the mother actually assaulted the daughter "when the daughter attempted to bring her backpack on a visit with the father".

Based upon all of that behavior alone, which apparently pre-dated the filing of the first petition, the court was easily able to find a change in circumstances. And, buried within all of that, the court was obviously able to make a best interests determination as well, especially since the Third Department notes that the mother placed her own interests above and before those of her children. That's a huge no-no.

So, as mawkish as it may sound, it is nonetheless true: you need to love your children more than you hate your ex. Or you will pay the price for your stupidity and selfishness. It's that simple.