#366 Third Department Caselaw Round-Up for April 26, 2012, Part 8 of 8

April 27, 2013

366 Post 04-26-12, Part 8 Third Department April.pngHere are two relocation cases, both involving mothers who ultimately lose custody.

The first case gives a good overview of the general concept of "the totality of the circumstances" when analyzing a custody case, especially concerning relocation cases.

The second case is an object lesson in the pitfalls of parental alienation.

366 Post-2 Sullivan County.pngCase #243
Pizzo v. Pizzo
Sullivan Family-Ledina
Issues: Alcohol Abuse; Best Interests; Credibility; Custody; Divorce; Lincoln Hearing; Preponderance of the Evidence; Relocation; Stipulation; Visitation
Cited statutes: FCA Art. 6

The parties were married and had two children. The mother later left the marital residence with the children, moving from Sullivan County to Monroe County, to live with her boyfriend. As part of the parties' divorce, they entered into a stipulation, reduced to an order, whereby they would enjoy joint legal custody with the father having primary custody of the children and the mother having visitation. They also agreed that in the event the mother returned to live in Sullivan County, the parties would then share alternate physical custody on a weekly basis.

Ultimately, the mother returned to live in Sullivan County, but then she later relocated back to Monroe County, also with the children in tow. The mother then filed a petition seeking physical custody of the children and permission to relocate (after the fact). The father cross-petitioned for custody. After a hearing and a Lincoln hearing, the mother's petition was dismissed and the father was awarded primary physical custody of the children, with visitation to the mother - just as it used to be.

The mother appealed.

This is really nothing more than a simple relocation case. As such, the rules embodied in Tropea come into play. The mother had to show that it was in her children's best interests to relocate with her. To do so, she had to convince the court of several factors, most notably the following:
1. That she had a good faith motivation for seeking to relocate;
2. That the impact of the move on the children's relationship with the non-custodial parent would not be adverse (or, at least, minimally adverse);
3. That suitable visitation would be feasible and logistically possible; and
4. That the relocation of the children would enhance their lives in some way.

The trial court was not impressed with the mother's proof. About the only red meat she had was dirt on the father: he had pled guilty to DWI not long before. However, the father was able to present substantial evidence rebutting the mother's allegations that the DWI should disqualify him as the custodial parent, to the satisfaction of the trial court.

Thus, based upon the totality of the circumstances, the mother loses and the father wins.

366 Post-3 Ulster County.pngCase #244
Jeannemarie O. v. Richard P.
Ulster Supreme-Zwack
Issues: Alienation; Best Interests; Child Support; Credibility; Custody; Divorce; Domestic Violence; Drug Abuse; Experts; Family Offenses; Orders of Protection; Relocation; Sexual Abuse; Stipulation; Visitation; Witnesses
Cited statutes: DRL ยง241

Parental alienation is a truly evil and selfish thing, especially because it completely ignores what is in the children's best interests. If it can be proven in court, the parent engaged in the alienation will lose, usually in a very big way.

The parties were married and had two children. Thereafter, the mother relocated to Suffolk County with the children. Once there, she filed a family offense proceeding and commenced an action for divorce. The father filed a petition for custody in Ulster County but it was divorced due to the pending divorce action in Suffolk County. The father then filed a habeas corpus proceeding in Suffolk County. Ultimately, the parties entered into a stipulation, reduced to an order, wherein they agreed to a temporary parenting schedule. Venue for the divorce was then transferred to Ulster County (where it should have been in the first place).

Once the proceedings were back in Ulster County, the father moved for temporary custody and the mother cross-moved for both temporary custody and child support. After a hearing, the court awarded the father temporary sole custody and ordered the mother to pay child support.

The mother appealed.

First off, sole custody was really the only viable option in this case given the level of animosity between the parents.

Second, expert testimony revealed that while the father had some failings as a parent, the mother's failings were far worse insofar as she engaged in far-reaching and devastating (to the children and the father) parental alienation.

Third, the mother wanted to remove the father from her children's lives and went so far as to do the following:
1. "Unilaterally moved the children several hours away from the father";
2. "Cancelled agreed-upon visitation arrangements";
3. "Made negative allegations against the father as to, among other things, substance abuse and violence that were unsubstantiated";
4. Made the almost certainly false claim that the father had sexually abused one of the children;
5. "Engaged in inappropriate coaching of the children to support her goal of alienating them from the father"; and
6. Relocated to Suffolk County, from Ulster County, with the children for the sole purpose of minimizing "the father's parenting time with the children and obtain[ing] a tactical advantage in the divorce action".

There are two key quoted sentences to take away from this decision. The first, more general statement, is this: "evidence that the custodial parent intentionally interfered with the non-custodial parent's relationship with the child is so inconsistent with the best interests of the child as to, per se, raise a strong possibility that the offending party is unfit to act as a custodial parent."

The second statement, specific to this case, is this: "the mother placed her own self-interest ahead of that of the children and lacked insight into the importance of the children's relationship with the father and the detrimental impact of her actions upon them, while the father showed greater willingness to foster a relationship between the children and the mother and to improve his parenting skills."

What an evil bitch. Don't get me wrong: I'd think the father was an evil bastard if he had pulled the same stunts.

As you might have guessed, this was a no-brainer for both courts.

However, the Third Department found the record confused as to the child support aspect of this case and, therefore, remitted it back to the court for further proceedings on the issue of retroactive child support.