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

727 Post 10-17-13 Third Department October.pngMost custody battles are pretty innocuous and easily resolved. In fact, the overwhelming majority get resolved on consent with the remainder being tried and the parties accepting the results of the trial. I would imagine that somewhere around 1% of all custody disputes ever actually make it to an appeal.

727 Post-2 Tompkins County.pngCase #628 #514450
Festa v. Dempsey
Tompkins Family-Sherman Key Issue: The pros and cons of parents concerning the best interests of their child Affirmed

The parties were married and had a son. Thereafter, the mother and the son, together with “two of her sons from prior relationships, moved out of the marital residence to a location approximately an hour away.” The following year, the mother moved again, this time an additional hour away – for a total of two (2) hours away from the marital residence where the husband presumably still lived – to live with her boyfriend and his three kids.

Finally, the parties got divorced and they consented to joint legal custody with the mother having primary physical custody and the father having parenting time with their son.

But you know that isn’t the end of the story, right? After the mother moved two (2) hours away from the marital residence, what did she now propose? That’s right: she filed a petition to modify the custody order to require “the father to be responsible for transportation.” How lovely. The father responded by filing a cross-petition seeking sole custody of their son, in part due to parental alienation on the part of the mother.

After a hearing, the Family Court agreed with the father and awarded him sole custody of their son, finding the relationship between the father and mother to be so untenable as to make joint legal custody impossible.

The mother appealed.

Okay, once more, this is a balancing test as between parents to determine the best interests of the child. Think pro and con with regard to each parent. More particularly, what was in the “CON” column for the mother?:
1. Her “current boyfriend admitted to using corporal punishment on the child”;
2. Her boyfriend also “had a violent temper”;
3. Her boyfriend had “a history of having been convicted of harassment in the first degree with an order of protection issued against him”;
4. She “began to limit [the father’s] visits [with their son] and phone calls for no apparent reason”;
5. “She was also found to have initiated heated arguments with [the father] in the child’s presence”;
6. “She apparently agrees that [she and the father] are unable to communicate except through the exchange of a notebook”; and 7. Overall, “the mother had become unwilling to foster the child’s relationship with the father”.

Furthermore, “the father’s home environment was more stable and he was more likely to foster the child’s relationship with the mother.”

Lastly, ya gotta love those sly adjectives the Third Department uses to set the tone: the mother’s current boyfriend. The obvious implication is this is but the latest in a series of mom’s “boyfriends”. And the Third Department is none too pleased with Mom’s questionable taste in men.

Adjectives and footnotes … keep your antennae attuned for them as that is where the Third Department’s snark lies. Seriously: sometimes these decisions will make you belly-laugh (or feel like you need a shower).

Should you need your case appealed, remember to file your Notice of Appeal IMMEDIATELY! If you have any questions about filing a Notice of Appeal, then CONTACT ME IMMEDIATELY!

Contact me immediately to schedule A FREE ONE HOUR OFFICE CONSULTATION so that we may be able to determine if you have a case that may be successful on appeal.