Selected Cases Relating to Trial
Communications
between child and therapist.
“We reject respondent's contention
that the court erred in admitting in evidence the communication of the child to
her therapist. That communication, admitted with the consent of the Law
Guardian, was material and necessary to the court's determination of the
child's best interests (see generally Perry v Fiumano, 61 A.D.2d 512, 403 N.Y.S.2d 382).”
Use of tapes; harmless error.
“While it was error to admit the
recording of the conversation between the father and the son, that error was
harmless, since there was ample evidence to evaluate the best interests of the
child without resorting to the recording of the conversation between the father
and the son (see, Janecka v Franklin, 131 AD2d 436; Matter of Berk v Berk, 70 AD2d 943).” Jaeger v. Jaeger, 207 A.D.2d 448, 616 N.Y.S.2d
230 (2d Dep’t 1994).
Tapes.
“Ample evidence is available to
evaluate the best interests of the children without resorting to illegally
obtained recordings of conversations between the mother and her children.” Berk v. Berk, 70
A.D.2d 943, 417 N.Y.S.2d 785 (2d
Use of tapes at trial. See Johnson v. Johnson, 235 A.D.2d 217, 217-18, 652 N.Y.S.2d 504 (1st
Advocate-witness
rule.
Application to disqualify Law
Guardian based on advocate-witness rule denied.
“Although the mother sought
disqualification on the ground that the Law Guardian might be called as a
witness and thus that the advocate-witness rule would thereby be violated, she
failed to meet her burden of establishing the necessity for that testimony. [citations omitted]. In
any event, the Law Guardian was not in fact called as a witness, and thus
the advocate-witness rule was not implicated.”
Herald v. Herald, 305 A.D.2d 1080, 1081
(4th
Mental health
evidence.
“It is well settled that in a matrimonial action, a party waives the physician-patient
privilege concerning his or her mental or physical condition (see, CPLR 4504) by actively
contesting custody (see, Baecher v Baecher, 58 AD2d 821; People ex rel.
Chitty v Fitzgerald, 40 Misc 2d 966).
However, "[t]here first must be a showing beyond 'mere conclusory
statements' that resolution of the custody issue requires revelation of the
protected material" ( Perry v Fiumano, 61 AD2d 512, 519).” McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477 (2d
Trial -- burden
of proof -- effect of agreement. Custody changed based on substantially
changed circumstances; this case involved modification, not relocation, because
parties had agreed to custody arrangement after move. Petitioner met his burden to show that
continued adherence to the existing agreement would not be in the child's best
interests. Daniel
R. v. Liza
R., 309 A.D.2d 714 (1st
Trial -- effect of agreement. “Although the totality of the circumstances
of the case and the best interests of the child are factors to be considered in
all cases where modification of custody is sought (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1982];
Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93-95 [1982]),
where the parties have entered into an agreement, the agreement is entitled to
considerable weight (see Eschbach, 56 N.Y.2d at 171) and it is incumbent on
the party seeking the change to show that in light of changed circumstances
continued adherence to the agreement would not be in the children's best
interests (see Tirschwell v. Beiter, 295 A.D.2d 266 [2002];
Karetny v. Karetny, 283 A.D.2d 250, 724 N.Y.S.2d 410
[2001]).” Party seeking
modification of agreement must establish that it is in child’s best
interests. Steck v. Steck, 307 A.D.2d 819, 820 (1st
Trial required for permanent order
of custody. Family Court, without a
hearing, transferred custody from the mother to the father on the ground that
the mother was not complying with the visitation provisions of the judgment of
divorce. Remanded for
full evidentiary hearing. Khan v. Dollay, 6 A.D.3d 437 (2d
Court erred in suspending all visitation without hearing on best interest of the
child. Appellate Division modified,
deleting the provisions thereof directing each party to pay the sum of $5,000
to the forensic evaluator and ordering that if the husband fails to pay, sole
custody of the parties' infant child shall remain with the wife. “The Supreme
Court erred in suspending all visitation and telephone contact between the
husband and the parties' infant child based upon the husband's failure to pay
his share of the fees of the forensic evaluator and law guardian. The Supreme
Court disregarded what should have been its first concern, "the welfare
and the interests of the [child]" (Matter of Lincoln v Lincoln, 24 N.Y.2d 270 [1969]).
‘[A] noncustodial parent should have reasonable rights of
visitation, and . . . the denial of those rights is so drastic it must be based
upon substantial evidence that visitation would be detrimental to the welfare
of the child’ (Matter of
Eric L. v Dorothy L., 130 A.D.2d 660, 660-661 [2d Dep’t 1987]; [***12] see Matter of Hughes v Wiegman, 150 A.D.2d 449 [2d Dep’t 1989]; Janousek v Janousek, 108 A.D.2d 782, 784 [2d Dep’t
1985]). The wife's allegations here should not have resulted in
the suspension of the husband's visitation without a forensic evaluation
followed by a hearing addressing, inter alia, the
child's best interests (see Matter
of Bradley v Wright, 260 A.D.2d 477 [2d Dep’t 1999]; Pica v Pica, 96 A.D.2d 836, 837 [2d Dep’t 1983];
Kresnicka v Kresnicka, 48 A.D.2d 929 [2d Dep’t 1975]).” Klutchko
v. Baron, 1 A.D.3d 400, 405 (2d
Issue preclusion; limited usefulness. Although the defendant's motion for a change
in custody contained similar allegations to those he raised in an earlier
proceeding, since the allegations in the motion were primarily based upon
events and circumstances occurring after the prior proceeding, the doctrines of
res judicata and collateral
estoppel are not applicable here. A parent seeking a change in custody is not
automatically entitled to a hearing, but here parent made sufficient showing to
obtain a hearing. Pander v. Pander,
1 A.D.3d 583 (2d
Weight of Law
Guardian’s and expert’s positions.
“Recommendations of persons such as the
court-appointed psychologist and law guardian are not determinative of the
ultimate issue in controversy but are factors to be considered, unless
unsupported by the record (see Young v Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d 957).” Custody properly awarded to respondent; Court
did not err in failing to conduct in camera interviews of children. Picot v. Barrett, 8 A.D.3d 288, 289
(2d
Trial. Appellant’s
behavior in courtroom supported award of sole custody to respondent. Caraballo
v.
Trial. Father’s visitation
petition properly dismissed without a hearing as appellant had no relationship
with the child, never met the child and did not seek visitation until child was
ten years old. Razo
v. Leyva, 3 A.D.3d 571 (2d
Trial -- severe mental illness
justifies suspension of visitation without a hearing, but not a prohibition
against filing new petitions. “Under the
circumstances of this case, the Family Court properly suspended the mother's
visitation rights without conducting an evidentiary hearing. The Family Court
possessed sufficient information, including the report of a neutral forensic
psychiatrist, to render an informed visitation determination consistent with
the best interests of the children. [citations omitted].
Furthermore, in light of the evidence concerning the severity of the
mother's mental illness, and the recommendation of the neutral psychiatrist who
evaluated her, the Family Court's determination to suspend visitation is in the
best interests of the children [citations omitted].”
“[371/72] However, we agree with the mother's
contention that it was improper for the Family Court to bar her from filing any
future applications for custody and visitation ‘without a prior showing that
she is compliant with therapy and the use of anti-psychotic medication.’ Although the court may, in appropriate circumstances, require
a party to obtain counseling and treatment as a component of a custody or
visitation order [citations omitted], it has no authority to compel a parent to
undergo therapy as a condition to any future application for custody or
visitation. Williams
v. O’Toole, 4 A.D.3d 371, 371-72 (2d
No arbitration of custody and
visitation. Award of custody by Jewish
Rabbinical Court in arbitration was vacated as against public policy. “Disputes concerning child custody and
visitation are not subject to arbitration as ‘the court's role as parens patriae must
not be usurped’ [citations omitted].” Hirsch
v. Hirsch, 4 A.D.3d 451, 452 (2d
Trial. Assistance
of counsel.
Court erred in not re-assigning
new counsel since during the fact-finding, appellant was not able to challenge
court-appointed expert or cross-examine respondent effectively. St. Denis v. St. Denis, 1 A.D.3d 369 (2d
Trial. Order reversed as
grant of custody was made without conducting an evidentiary hearing. Pudalov v. Pudalov, 308 A.D.2d 524 (2d
Detailed findings required,
particularly if hearing not held. A
hearing need not be held if the evidence before the court is sufficient to
enable it, even without a hearing, to reach a sound conclusion as to the best
interests of the child, but the court's determination must have a sound and
substantial basis in the record, and where the basis upon which the Family
Court concluded that the best interests of the child warranted an award of
custody to the father was not stated on the record, the appeals would be held
in abeyance and the matter remitted to the Family Court to state the basis
for awarding custody of the parties' child to the father. Bouie v. Arvelo-Smith,
784 N.Y.S.2d 894, 2004 NYSlipOp 08859 (2d Dep’t Nov. 29, 2004).
Right to
counsel. “The Family Court improperly proceeded
without considering the incarcerated father's written "motion for legal
representation," thereby impairing the father's ‘right to the assistance
of counsel.’ [citations
omitted]. The deprivation of a party's fundamental right to counsel in a
custody or visitation proceeding requires reversal, without regard to the
merits of the unrepresented party's position.
[citations omitted]. Knight
v.
Trial. Domestic
violence. Granting custody to
father was proper without a hearing where mother had permitted children to live
with abusive boyfriend. Assini v. Assini, -- A.D.3d --, 783 N.Y.S.2d 51, 2004
NYSlipOp 07125 (Oct. 4, 2004).
Change of custody improper
sanction for contempt. Labanowski v. Labanowski,
4 A.D.3d 690 (3d
Polygraph testimony improper:
“Family Court improperly allowed
the results of a psychophysiological detection of
deception examination, a type of polygraph examination, into evidence through
the psychologist's report. The Court of Appeals has held, in the criminal
context, that polygraph evidence is not admissible because it has not been
established as sufficiently reliable within the scientific community (see People v Angelo, 88 N.Y.2d 217, 223
[1996]; People v Shedrick, 66 N.Y.2d 1015, 1018 [1985]). Every
other department of the Appellate Division has imported that holding into the
Family Court arena (see Matter
of Stephanie B. [Keith B.], 245 A.D.2d 1062, 1063 [4th Dept
1997]; Matter of Erick R.
[Eric R.], 166 A.D.2d 161, 162 [1st Dept 1990], lv denied 77 N.Y.2d 802
[1991]; Matter of Aryeh-Levi K. [Caryn K.], 134
A.D.2d 428, 429 [2nd Dept 1987]). We agree that polygraph
examination results should not be admitted into evidence because they have not
been established as sufficiently reliable.”
In re
Lauren B., -- A.D.3d -- (3d Dep’t
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