At The Law Offices of Gildin & Chapman, our skilled family law and divorce lawyers stay up-to-date on changes to the law and recently decided court cases. This ensures that the legal advice we provide to our clients is accurate.

On a periodic basis, attorney Steven Gildin provides case summaries for educational and informational purposes. This information does not constitute legal advice. If you need legal representation in New York, please contact us to schedule a consultation. We help clients from three office locations in Queens, Long Island, and Manhattan.

New York Case Summaries

CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT

The Family Court did not err by, in effect, confirming the Support Magistrate’s finding that the father willfully violated the child support order. At a hearing to determine whether a respondent has willfully failed to obey a lawful order of support, the burden is on the petitioner to establish that the respondent willfully violated the terms of the support order by failing to pay the required support. Evidence of the respondent’s failure to pay child support as ordered constitutes prima facie evidence of a willful violation. Once this showing has been made, the burden shifts to the respondent to present competent, credible evidence of “his or her financial inability to comply. Here, in response to the mother’s prima facie showing of the father’s willful violation of the child support order, the father failed to present credible and competent evidence of his financial inability to comply with that order, as the Family Court properly determined.

Nestor v. Nestor, – NYSd – , 2025 WL 778870 (2nd Dep’t.  2025)

IN CASE YOU WERE NOT PAYING ATTENTION ABOVE, HERE IS ANOTHER – CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT

Evidence of a failure to pay support as ordered constitutes prima facie evidence of a willful violation, establishing the petitioner’s direct case of willful violation and shifting the burden to the respondent to produce competent, credible evidence of his or her inability to make the payments as ordered.

Here, the evidence of the father’s failure to pay child support as ordered, which the mother presented at the hearing, constituted prima facie evidence of a willful violation of his child support obligations. The father failed to satisfy his burden, as he did not present competent, credible evidence that he made a reasonable and diligent effort to secure gainful employment to meet his child support obligations

Kaloustian v. Tsvetkov, – NYS3d – , 2025 WL 779004 (2nd Dep’t. 2025)

YA BOTH LIARS! INCOME IMPUTED TO BOTH PARENTS

When determining parental income for the purposes of child support, a support magistrate need not rely upon a party’s account of his or her own finances, but may impute income to a party based on his or her employment history, future earning capacity, education background, or money, goods, or services provided by relatives and friends. A court is not bound by a party’s account of his or her own finances, and where a party’s account is not believable, the court is justified in finding a true or potential income higher than that claimed. A support magistrate is afforded considerable discretion in determining whether to impute income to a parent, and we accord deference to a support magistrate’s credibility determinations. Here, the Support Magistrate providently exercised her discretion in imputing income to the mother based on the mother’s work experience and earning capacity, and her assessment of the mother’s credibility. Similarly, the amount of income imputed to the father and the calculation of the mother’s basic child support obligation by the Support Magistrate are supported by the record and should not be disturbed.

Vittorio v. Vittorio, – NYS3d – , 2025 WL 778720 (2nd Dep’t. 2025)

NO MEDICAL NEGLECT

ACS did not prove by a preponderance of the evidence that the mother medically neglected the children.  To find medical neglect, there must be a determination that the parent did not seek or accept medical care, and that such failure placed the child in imminent danger of becoming impaired. The most significant factor in determining whether a child is being deprived of adequate medical care is whether the parent has provided an acceptable course of medical treatment for his or her child in light of all the surrounding circumstances. Here, ACS did not allege that the mother’s failure to seek preventative care caused actual impairment to the children or present evidence at the fact-finding hearing that the failure to seek such care placed the children in imminent danger of becoming impaired. Further, the evidence demonstrated that, when one of the children presented symptoms of near syncope, the mother promptly called 911 and sought medical care. Under these circumstances, the Family Court should not have found that the mother medically neglected the children.

Matter of David J., – NYS3d – , 2025 WL 778842 (2nd Dep’t. 2025)

ONE HIT TO A CHILD DOES NOT NEGLECT ALWAYS MAKE

An isolated instance of excessive corporal punishment resulting in relatively mild physical injuries does not support a finding of neglect” (See In re Kennya S., 89 AD3d 570, 570 (1st Dept 2011). See also Matter of Avrie P. (Meliza T.), 185 AD3d 444 (1st Dept 2020) (a finding of neglect was not supported by the evidence that the child’s mother pulled her daughter by the arms, attempted to drag her home, and pulled her hair) ; Matter of Christian O., 51 AD3d 402 (1st Dept 2008) (a finding of neglect was not supported by the evidence that, in an isolated incident, the father lost his temper and kicked the child once in the ankle) ; Matter of Chanika B., 60 AD3d 671 (2nd Dept 2009) (a finding of neglect was not supported by the evidence that, in an isolated incident, the father slapped the child in the face, causing her nose to bleed, because she had disobeyed him).

Considering the totality of the evidence presented at the fact-finding hearing, the petitioner failed to prove, by a fair preponderance of the evidence, that the February 1, 2024 incident alleged in the petition actually occurred. CPS credibly testified that the subject child told her that he was hit by the respondent mother, and that it resulted in the red bruise CPS observed on his arm six days later. However, the evidence presented by the respondent undermines the reliability of the subject child’s statements. Specifically, the Court credits the respondent mother’s testimony that she did not hit or grab the subject child at any point on February 1, 2024 or otherwise, that she did not observe any marks or bruises on his arms in the days immediately following the alleged incident, that she did not notice any change in the subject child’s demeanor or behavior and that the subject child continued to participate in all of his regular activities at a high level in the days that followed. Further, the Court credits the testimony of Dr. M. that the bruise in the photograph taken on February 7, 2024, which was offered into evidence by the petitioner, was not five or six days old and was actually 12-48 hours old, which undermines the subject child’s report to the school nurse and CPS that the bruise at issue was the result of a hit or grab by the respondent mother on February 1, 2024. Additionally, the photographs and videos of the subject child offered by the respondent, which show the subject child engaging in activities in the days following the alleged incident, establish that there were no apparent marks or bruises on the subject child’s arms.

In any event, even if the petitioner proved, by a fair preponderance of the evidence, that the incident on February 1, 2024 actually occurred, such evidence would not be sufficient to sustain a finding of neglect. Indeed, evidence of one isolated incident in which the respondent mother lost her temper and spontaneously grabbed or hit the subject child’s arm, resulting in relatively mild physical injury, is not sufficient to sustain a finding of neglect under the law. Here, not only is the subject child’s injury mild, the respondent mother’s conduct was less severe than the conduct of the respondent parents in Matter of Avrie P. (Meliza T.), Matter of Christian O. and Matter of Chanika B., none of which was sufficient to sustain a cause of action for neglect.

Matter of A.H., – NYS3d – , 2025 WL 798265 (N.Y. Fam. Ct. 2025)

SCHOOL?  MY KID HAS TO GO TO SCHOOL?  REALLY?  ALL OF THE TIME?

The finding that the child was educationally neglected by the mother is supported by a preponderance of the evidence. The child, who turned seven in 2022, resided in New York City, and was enrolled in kindergarten for the 2022–2023 school year. She was therefore required to attend school. During the 2022–2023 school year, the child was absent from school 73 times and late 30 times. While the mother argued during fact-finding that some of those were medically excused absences, they were not documented by doctors’ notes or other documentary support provided to the school. Evidence of excessive unexcused absences from school supports a finding that the child was in imminent danger of becoming impaired.

Matter of La. J., No. 2024-02856, 2025 WL 836482, at *1 (N.Y. App. Div. Mar. 18, 2025)

THE EASIEST PATH TO WIN A FAMILY OFFENSE PETITION

– CREDIBLE TESTIMONY FOR HARASSMENT IN 2ND DEGREE

–– THE STRATEGY OF – HEY, THEY REALLY FREAKIN ANNOY ME !

A person commits harassment in the second degree when that person, with intent to harass, annoy or alarm another person, strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same or engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Contrary to the defendant’s contention, a fair preponderance of the evidence adduced at the hearing established that he committed the family offense of harassment in the second degree. Where, as here, the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination will not be disturbed unless clearly unsupported by the record. The Supreme Court’s determination that the defendant committed the family offense of harassment in the second degree was based upon its assessment of the credibility of the parties and is supported by the record.

Aronov v. Matvienko, – NYS3d – , 2025 WL 850173 (2nd Dep’t. 2025)

TO ‘WRIT’ OR ‘NOT TO WRIT’ – TIS THE QUESTION

– this case raised a thought for me not for it’s holding, but for the scope of a ‘writ’

– I have encountered judges who will only hear a writ if there is an existing order of custody and others that will hear it without an underlying order

– the statutes make no reference that an underlying order is needed

WHAT SAY THOU ?

The Family Court has jurisdiction to determine custody [and parental access] in habeas corpus proceedings (Family Ct Act § 651[b]), and section 70(a) of the Domestic Relations Law allows a parent to apply for habeas relief for their minor child and authorizes the court to award custody [or parental access, based on the best interest of the child, and what will best promote the child’s welfare and happiness (Matter of Celinette H.H. v. Michelle R., 40 N.Y.3d 1047, 201 N.Y.S.3d 317 ; Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89 ; Matter of Melinda D., 815 N.Y.S.2d 644). Only a parent may petition for custody or parental access under Domestic Relations Law § 70. Here, the petitioner has conceded that his parental rights were terminated, and that the children were adopted by one or more nonparties, before he filed his petition for a writ of habeas corpus. He therefore lacked standing, as a parent, to seek custody of or parental access with the children.

Davis v. ACS-Kings, No. 2023-05924, 2025 WL 850186, at *1 (N.Y. App. Div. Mar. 19, 2025)

IS IT NOT ASTOUNDING THAT A PARTY CAN BLATANTLY VIOLATE THE AUTOMATIC ORDERS AND NOT FACE ANY REAL CONSEQUENCS ?

– here, party sold $30m asset and the proceeds were simply placed into escrow and the party was ordered not to do it again

THE MORE INTERESTING PART OF THE CASE IS THE DISCUSSION WHERE THE COURT CAN ORDER PRE-EQUITABLE DISTRIBUTION OF ASSETS DURING THE PENDENCY OF THE CASE

The husband violated the automatic orders imposed on the parties at the commencement of a matrimonial action (Domestic Relations Law § 236[B][2][b]). The husband purchased and sold real property in East Hampton without seeking approval from or even disclosing the purchases to the wife or the court, failed to substantiate that purchases were made entirely with post-commencement income, or were made in the usual course of business. As the husband had numerous opportunities to request a hearing on these issues and did not, he failed to preserve the issue for appellate review.

While distribution of marital assets typically occurs as part of the final judgment of divorce (Domestic Relations Law § 236[B][5]), courts have recognized exceptions in certain circumstances (Mallary v. Mallary, 778 N.Y.S.2d 474 (1st Dept. 2004)(granting withdrawals from the parties’ investment account as advances against equitable distribution to pay both parties’ counsel fees) ; Feldman v. Feldman, 720 N.Y.S.2d 117 (1st Dept. 2001) (granting immediate distribution of 50% of the proceeds of the sale from the parties’ Westhampton home to meet defendant’s necessary housing needs).

In Havell v. Islam, 710 N.Y.S.2d 51 (1st Dep’t. 2000), this Court recognized that pretrial distribution of the proceeds of the sale of the marital residence was appropriate where it provided for the parties’ reasonable needs. In a subsequent decision, this Court affirmed an advance against the husband’s share of equitable distribution to allow him to pay necessary expenses incurred during the action’s pendency, specifically, his legal fees in a criminal proceeding (Havell v. Islam, 734 N.Y.S.2d 841 (1st Dep’t. 2001).

Here, Supreme Court abused its discretion by directing the husband to pay $29.6 million, which was the amount he used to purchase real property in violation of the automatic orders, directly to the wife as an advance on equitable distribution. This is not a situation where the wife needed the award for necessary expenses, counsel fees or other reasonable needs.

While the husband’s blatant violation of the automatic orders, which he concealed from the wife and the court, indicates his disregard for both and warrants redress, under these circumstances, the appropriate pendente lite relief is to direct that the award be held in escrow. As we find nothing conclusive in the record demonstrating financial coercion, we must highlight that we have not relied upon that factor as a basis for our decision.

Furthermore, given the husband’s violation of the automatic orders, we conclude that the court’s modification thereof is appropriate. The husband retains the ability to seek leave of court should he wish to purchase any additional real estate.

Accordingly, the award is vacated. The wife is directed to deliver the $29.6 million award to her counsel, to be held in escrow during the pendency of the action, subject to reallocation after trial

Roberson-Fisch v. Fisch, – NYS3d – , 2025 WL 863933 (1st Dep’t. 2025)

INSERT YOUR OWN HEADLINE HERE –

– Don’t let your horses sit down for dinner at the table with your children?

Here, while it is undisputed that two of the three children have moderate or severe allergies to horses and the father’s home is on property that has a barn in which horses are boarded, the home study of the father’s residence did not conclude that visitation at the home was unsafe for the children. Rather, the home study stated that the horses were kept in stables, downwind and a moderate distance from the home. Moreover, the home study notes that safety precautions were taken by the father and his wife to not have allergens in the home. Additionally, the mother’s expert allergist initially recommended that the children be treated with allergy medication before being exposed to an allergen but did not set forth any restrictions for the children with respect to visitation at the father’s home. The expert changed his opinion, however, to one that the children are to strictly avoid horse allergens and seemingly the father’s house, but such opinion was based on faulty information that the children were taken to urgent care as a result of an allergic reaction to the horses. Indeed, there is no evidence in the record that the children cannot safely visit with the father at his residence if the allergic children are precluded from having access to the horses and the father and his wife continue to take safety precautions to ensure the children’s safety while at the residence.

Passero v.  Patcyk, – NYS3d – , 2025 WL 877813 (3rd Dep’t.  2025)