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#377 Third Department Caselaw Round-Up for May 31, 2012, Part 2 of 6

377 Post 05-31-12, Part 2 Third Department May.pngWe’ll call this one Bad Father, Good Father.

The first case illustrates the chaos some children have to deal with when one or both of their parents act like children themselves. It also shows that if a change in circumstances is present, then even orders that are only days old can be modified.

The second case is yet another warning to parents to get along for the sake of their children – or else. The “or else” usually means the end of joint legal custody. If you can’t play nice with one another, then you will force the court to choose the better parent.

377 Post-2 Chemung County.pngCase #264 #512640
Klee v. Schill
Chemung Family-Brockway Issues: Behavioral Issues; Best Interests; Change in Circumstances; Corroboration; Counseling; Credibility; Custodial Interference; Custody; Jail; Lincoln Hearings; Stipulation; Supervised Visitation; Therapeutic Visitation; Visitation; Willful Violations of Orders Cited statutes: FCA Art. 6 Affirmed

Heads up: there are 5 footnotes on this one.

The parties are the unmarried parents of a son. Because both parents have been in and out of jail, the child was placed with a presumed friend of the family since he was six months old. The child had limited contact with his father, due to the father being incarcerated. Upon the father’s release from jail, his visitation with the child gradually increased to include overnights. The parties thereafter entered into a stipulation, reduced to an order, whereby the father would have alternate weekend visitation with his son.

Eleven days later, the mother filed a petition to modify the order. The mother claimed that the son was “exhibiting aggressive and unruly behavior as a result of visiting [his] father”. As a result, the mother enrolled the child in counseling. The father filed a petition alleging that the mother and her friend had interfered with his visitation with his son, in clear violation of the order.

The court held a Lincoln hearing with the child and then a hearing on the petitions. The court found that therapeutic visitation would benefit the father and his son. At the conclusion of the therapeutic visitation, any party could then petition the court.

The father appealed.

The record revealed that the child was being subjected to extreme stress and anxiety while at his father’s house, to the point where the child would leave his father’s house “kicking and screaming”. The child also “began displaying aggressive behavior towards objects, animals and other children after visiting with [his] father”. The child had been injured at his father’s by his older half-siblings as well. The father also tormented the child for not having his last name.

“Moreover, the father’s testimony established that he had refused to participate in the child’s counseling because he did not feel that he had done anything wrong and he had not visited with the child, nor made any attempt to attend the child’s sporting events or to remain informed about the child’s health or education, and made minimal efforts to communicate with the child during the approximately nine months between the filing of the mother’s petition and the conclusion of the fact-finding hearing.”

That is a useless and uncaring father. And, yes, that was one long sentence. When the Third Department goes on a tear, watch out for looooooooooong sentences as they are almost always very telling. It’s like a parent taking a deep breath before cutting loose on you with one, long, terrible rant.

Also, the Third Department mentions, in passing, that the hearing in this case was conducted “on two separate dates over a period of approximately six months”. To my mind, that is a passive-aggressive way of admonishing the court for taking so damned long to resolve this case. Otherwise, why mention it at all?

377 Post-3 Cortland County.pngCase #265 #512677
In the Matter of Mark RR.
Cortland Family-Ames Issues: Best Interests; Change in Circumstances; Credibility; Custody; Neglect; Placement; Removal; Witnesses Cited statutes: FCA Art. 6, Art. 10 Affirmed

More footnotes and more passive-aggression from the Third Department. Check out the frustration with appellate counsel packed into footnote 1. Ouch.

DSS filed a petition against the mother, alleging that she had neglected her two children. The children were removed and placed in the custody of their father for the duration of the proceeding. The mother consented to a finding of neglect. After completing various services provided by DSS, the mother petitioned the court to terminate the children’s placement with their father. The father cross-petitioned for custody. After a hearing, the court awarded the father sole legal custody.

The mother appealed.

The crux of this case is the fact that the children are special needs children. The mother apparently snapped, under the stress of caring for them, and assaulted one of her children, “causing severe bruising”. Notwithstanding the mother’s successful completion of the programs provided by DSS, the mother’s own counselor testified that the mother was not yet ready to take primary physical custody of the children again. However, the father turned out to be a model parent who was deemed to be “actively involved in ensuring that their medical, emotional and educational needs are satisfied”. Furthermore, “continued joint legal custody was unworkable and contrary to the best interests of the children in light of the parties’ acrimonious relationship and their inability to co-parent”.