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#726 Third Department Caselaw Round-Up for October 17, 2013

726 Post 10-17-13 Third Department October.pngSometimes, judges get creative. And that’s not necessarily a bad thing. In fact, I laud judges for being intellectually curious and daring enough to craft and tailor unique orders according to the needs of the children that come before them. However, if that creativity is not supported by the testimony adduced at trial, then the creative order becomes so much form over substance. And that’s no good for anyone.

726 Post-2 Tioga County.pngCase #627 #514558
Stout v. Gee
Tioga Family-Morris Key Issue: If the order of custody is NOT supported by the testimony in the record on appeal, guess what happens?

The parties “are the divorced parents of four children.” The father sought custody of the two youngest, minor children. When the mother failed to appear in court, the court granted the father’s petition on default – but without so much as a hearing – without prejudice to the mother’s rights.

Well, as you can imagine, the mother thereafter filed her own petition for custody of the two youngest children. This time, a hearing was held. The court found that the parties were to effectively share physical custody via “alternating two-week custody periods between the two households.”

No deal, said Mom, and she appealed.

The Third Department looked at the record on appeal, held its collective nose, and set it back to the Family Court to clear – and clean – things up.

Here are the problems:
1. “The record lacks a sound and substantial basis for Family Court’s determination that shared physical custody – as opposed to primary physical custody with one of the parents – was appropriate under the facts of this case”;
2. Neither party requested the specific relief imposed by the court;
3. The testimony at trial “was replete with mutual allegations of domestic violence and poor communication, as well as descriptions of vastly differing parenting styles;”
4. The Court failed to address “the wishes or preferences of the children, both of whom are in their teens, even though this factor should be entitled to great weight;”
5. The son preferred to live with his mother;
6. “The father does not fully understand or appreciate the daughter’s dietary needs and her medical issues; and 7. A Lincoln hearing was conducted with only one of the children instead of both of the children.

So, the parties get a do-over.

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