Know Your Rights

Under New York law, a parent may not relocate out of state with the children without the other parent’s consent or a court order. When parents do not agree, the court must decide whether the proposed relocation is in the children’s best interests.

There is no automatic right to relocate. Each case is decided based on the specific facts, including the parents’ roles, the children’s needs, and the impact of the move on the children’s relationship with the noncustodial parent. When analyzing relocation cases, New York courts consider factors such as:

• The quality of each parent’s relationship with the children
• Which parent has been the primary caretaker
• Whether the noncustodial parent has been consistent and involved in the reasons for the proposed move
• The effect of the move on the children’s emotional, educational, and social development
• Whether a realistic visitation schedule can preserve the relationship with the noncustodial parent

Ultimately, no single factor is determinative.

The following is an example of when a Court Allowed Relocation:

In a recent case, the Appellate Division upheld a Family Court order allowing a mother to relocate with the children to Georgia.

The court found that the mother proved by a preponderance of the evidence that the relocation was in the children’s best interests. The evidence showed that the mother had been the children’s primary caretaker and that the father did not contribute financially or maintain consistent visitation before the move. The court concluded that the father was responsible for the deterioration of his relationship with the children and was unable to place their needs above his own.

The court also credited the mother’s testimony that the children were thriving in Georgia. They were doing well in school, had friends and extended family nearby, and enjoyed stable housing with adequate space and outdoor areas. Although not determinative, the court also considered the position of the children’s attorney, who supported permitting the relocation.

Miguel C. v. Bennie B., NYS3d, 2026 WL 31389 (1st Dept 2026).

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Social Security benefits are not marital property and cannot be divided in a divorce. A court cannot award one spouse a share of the other spouse’s Social Security, and Social Security benefits are never divided by a QDRO.

This is different from pensions, 401(k)s, TDAs, and other retirement accounts, which are marital assets and can be divided.

How Social Security Typically Comes Up in Divorce:

In many divorces, one spouse may already be retired and receiving Social Security benefits, while the other spouse is younger, still working, and not yet receiving Social Security.

In that situation, there is no present right for one spouse to receive Social Security benefits based on the other spouse’s work record.

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A derivative Social Security benefit is a benefit paid by the Social Security Administration, not by the other spouse and not from the other spouse’s Social Security check.

It is a separate benefit that Social Security may pay to a current or former spouse based on the worker spouse’s earnings history, if specific statutory requirements are met.

If such a benefit ever becomes available, it does not reduce the worker spouse’s Social Security payment and it is not awarded or controlled by the divorce court.

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A divorced spouse may only receive a derivative Social Security benefit if all of the following conditions are met:

• The marriage lasted at least ten years
• The applicant is at least sixty-two years old
• The applicant is unmarried after the divorce is finalized
• The former spouse is entitled to receive Social Security benefits
• The applicant’s own Social Security benefit is less than one-half of the former spouse’s full retirement benefit

If the former spouse is not yet entitled to Social Security, no derivative benefit is available at that time.

Even when the former spouse becomes entitled to Social Security in the future, eligibility exists only if the applicant’s own Social Security benefit is less than one-half of what the former spouse’s benefit would be at full retirement age.

Important Final Point:

A derivative Social Security benefit is never handled as part of a divorce case. It is not negotiated, not awarded by a judge, and not part of equitable distribution. If eligibility ever arises, it is handled solely through the Social Security Administration.

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Yes, when domestic violence is alleged in a custody or parental access case, the effect of that domestic violence on the children is a factor that must be considered in determining the children’s best interests.

Courts do not treat allegations of domestic violence as irrelevant or collateral to custody. Even where the conduct is directed primarily at one parent, the court must consider how that conduct affects the children, including their safety, emotional well-being, and overall best interests.

In a recent decision, the Appellate Division reaffirmed that domestic violence allegations require careful consideration in custody determinations, specifically emphasizing that the impact of such conduct on the children must be evaluated as part of the best-interests analysis.

Samake v. Sy, NYS3d, 2025 WL 3770032 (2nd Dept 2025).

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In New York, the State may not deprive a parent of custody of a child absent surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances. Without such extraordinary circumstances, a court may not interfere with a parent’s right to custody simply because it believes it could make a better decision.

Only if extraordinary circumstances are established does the court proceed to determine custody based on the best interests of the child.

A.S. v. L.S., NYS3d, 2025 WL 3786360 (N.Y. Sup. Ct. Dec. 16, 2025).

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Extraordinary circumstances include situations such as surrender, abandonment, persisting neglect, unfitness, or an extended disruption of custody, as well as other circumstances of similar gravity. Whether extraordinary circumstances exist requires a review of the totality of the circumstances.

In determining extraordinary circumstances, courts examine a parent’s conduct, judgment, credibility, stability, and ability to care for the child. Repeated unlawful behavior, failure to provide for a child’s needs, lack of stability, false allegations of abuse, and conduct demonstrating an inability to manage basic responsibilities may collectively support a finding of extraordinary circumstances.

Once extraordinary circumstances are found, the court may then consider the child’s best interests in determining custody.

A.S. v. L.S., NYS3d, 2025 WL 3786360 (N.Y. Sup. Ct. Dec. 16, 2025).

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Yes, repeatedly calling law enforcement to conduct welfare or wellness checks, despite knowing such checks are unnecessary and serve no legitimate purpose, may constitute a family offense of harassment, when the conduct establishes a course of behavior intended to seriously annoy or alarm another party.

Where such conduct is proven by a preponderance of the evidence, and intent may be inferred from the surrounding circumstances, a court may issue an order of protection for the benefit of the affected parties, including children residing in the home.

A.S. v. L.S., NYS3d, 2025 WL 3786360 (N.Y. Sup. Ct. Dec. 16, 2025).

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Yes, when a custody or parenting agreement is incorporated but not merged into a judgment of divorce, it is enforceable as a contract according to its plain terms. Where such an agreement clearly limits where modification applications may be brought, repeated filings in violation of that provision may constitute vexatious and abusive litigation.

If a court determines that a party has engaged in vexatious litigation, including repeated improper custody filings, it may enjoin that party from commencing further proceedings in a particular court without prior approval, while preserving access to the proper forum designated in the agreement.

A.S. v. L.S., NYS3d, 2025 WL 3786360 (N.Y. Sup. Ct. Dec. 16, 2025).

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Yes, in limited circumstances. Under Domestic Relations Law section 25, a marriage is not void for failure to obtain a marriage license if the marriage is solemnized. A marriage is solemnized under Domestic Relations Law section 12 when the parties solemnly declare in the presence of a clergyman, magistrate, or one-day marriage officiant and attending witness or witnesses that they take each other as spouses.

Even when the parties do not make that solemn declaration, Domestic Relations Law section 12 also recognizes a marriage without a license when the marriage is solemnized in the manner used and practiced in the parties’ denomination.

Funti v. Andrews, NYS3d, 2026 WL 31290 (1st Dept 2026).

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Domestic Relations Law section 12 defines what it means for a marriage to be solemnized. Under the statute, no particular form or ceremony is required, but the parties must solemnly declare in the presence of a clergyman, magistrate, or one-day marriage officiant and at least one witness that they take each other as spouses.

Domestic Relations Law section 12 also provides that marriages within denominations having a particular mode of solemnizing marriages may be valid if solemnized in the manner used and practiced in that denomination.

Funti v. Andrews, NYS3d, 2026 WL 31290 (1st Dept 2026).

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A religious ceremony may create a valid civil marriage without a marriage license if the marriage is solemnized in the manner required by the Domestic Relations Law. Where the parties did not obtain a marriage license, the question becomes whether the ceremony was solemnized pursuant to Domestic Relations Law section 12 so as to create a valid marriage.

If the parties did not solemnly declare that they take each other as spouses, the inquiry may turn on whether the ceremony was solemnized in the manner used and practiced in the parties’ denomination, as referenced in the second paragraph of Domestic Relations Law section 12.

Funti v. Andrews, NYS3d, 2026 WL 31290 (1st Dept 2026).

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There can be constitutional concerns when a civil court is asked to determine whether a religious ceremony was solemnized in accordance with a denomination’s practices. The decision explains that civil disputes involving religious parties may be adjudicated without offending the First Amendment so long as neutral principles of law are the basis for resolution, without reference to religious doctrine.

The decision also discusses that cases interpreting the second paragraph of Domestic Relations Law section 12 largely fall into two categories: cases where there is a dispute about what a religion requires for solemnization, and cases where those requirements are not disputed. Where requirements are not disputed, the court may apply the evidence to the neutral standard established by the undisputed testimony.

Funti v. Andrews, NYS3d, 2026 WL 31290 (1st Dept 2026).

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A parent seeking a downward modification of child support must show either a substantial change in circumstances or a qualifying decrease in income under Family Court Act § 451. However, even where a reduction in income is alleged, the parent must provide competent proof that the decrease occurred through no fault of the parent and that the parent has diligently sought re-employment commensurate with his or her earning capacity. The court determines the appropriate support obligation based not simply on the parent’s current earnings but also on assets and overall earning capacity.

In this case, the father left his position as a financial advisor at a bank to start his own business after an asserted change to his compensation structure. Although he claimed that his business later suffered losses during the COVID-19 pandemic, the Support Magistrate determined that he failed to demonstrate diligent efforts to obtain replacement employment. The magistrate also considered the father’s undisclosed assets and significant expenditures, including the purchase of a $50,000 boat shortly before filing his petition. The appellate court upheld the determination that the father failed to establish either a substantial change in circumstances or the required decrease in income.

The court explained:

“Whether based upon an alleged change in circumstances or a purported decrease in income of at least 15%, the parent seeking a downward modification of a child support obligation must submit competent proof that the decrease in income occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity.”

The court further noted:

“While a parent is entitled to attempt to improve his vocation, his children should not be expected to subsidize his decision.”

WHAT THIS MEANS:

A parent who voluntarily leaves employment or reduces income cannot obtain a reduction in child support without proving that the income loss was not self-created and that diligent efforts were made to secure comparable employment.

Bonanno v. Bonanno, — NYS3d — (2nd Dep’t 2023).

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Family Court has the authority to award counsel fees at any stage of a proceeding under the Family Court Act, Article 4. In determining an appropriate award, the court must evaluate several factors, including the parties’ respective ability to pay, the merits of their positions, the nature and extent of the legal services performed, the complexity of the issues involved, and the reasonableness of counsel’s work and fees. The ultimate determination must be based on the totality of the circumstances, including the equities of the particular case.

Applying these principles, the appellate court held that the Support Magistrate properly exercised discretion in awarding the mother $9,160 in counsel fees.

The court explained:

“In determining an appropriate award of counsel fees, the court must consider factors such as the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.”

WHAT THIS MEANS:

Family Court may award counsel fees in child support proceedings after considering the parties’ finances, the merits of the dispute, the legal services performed, and the overall equities of the case.

Bonanno v. Bonanno, — NYS3d — (2nd Dep’t 2023).

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When parents share physical custody, a court may determine the primary custodial parent for purposes of the Child Support Standards Act (CSSA) based on the practical reality of the parenting schedule. The court examines which parent has physical custody of the children for the majority of the time. If parenting time is shared equally, the parent with the higher income is deemed the noncustodial parent for purposes of calculating child support.

The court explained:

“When the parties share physical custody, the court can determine the ‘primary custodial parent’ for purposes of the Child Support Standards Act based upon the reality of the situation by determining who has physical custody of the children for a majority of the time.”

The court further noted:

“If parenting time is shared equally, the noncustodial parent, for purposes of the CSSA, is the parent with the greater income.”

WHAT THIS MEANS:

When parents share custody, child support is determined by examining which parent has the children most of the time. If time is equal, the higher-earning parent is treated as the noncustodial parent for CSSA purposes.

Treglia v. Varano, — NYS3d — (3rd Dep’t 2023).

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A stipulation of settlement that is incorporated but not merged into a judgment of divorce is treated as an independent contract between the parties. A party seeking to challenge or reform such an agreement generally must commence a plenary action. However, a party seeking to enforce the stipulation may proceed by motion within the underlying divorce action rather than filing a separate action.

In this case, the defendant moved within the divorce action to enforce the stipulation of settlement and transfer title to the marital residence. The court determined that this request sought enforcement of the agreement and therefore did not require a plenary action. The court further held that the order transferring title did not alter the stipulation’s terms and interpreted the agreement in accordance with standard principles of contract construction.

The court explained:

“A stipulation of settlement that has been incorporated but not merged into a judgment of divorce is an independent contract binding upon the parties.”

The court further noted:

“A party seeking to challenge or reform such an agreement generally must do so by commencement of a plenary action and not by motion within the action for divorce. In contrast, a party seeking to enforce a stipulation of settlement may do so by motion within the underlying action and need not commence a plenary action.”

WHAT THIS MEANS:

When a divorce settlement is incorporated but not merged into the judgment, enforcement of its terms may be sought by motion in the existing case, whereas challenges to, or attempts to reform, the agreement generally require a separate plenary action.

Sabau v. Sabau, — NYS3d — (2nd Dep’t 2023).

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Evidence that a parent failed to make child support payments as required by a court order constitutes prima facie evidence of a willful violation. Once such proof is presented, the burden shifts to the obligated parent to demonstrate, with competent and credible evidence, an inability to comply with the order.

In this case, the evidence showed that the father failed to pay child support as directed by the order. The father did not provide competent and credible proof demonstrating that he was unable to make the required payments. As a result, the court determined that the violation was willful.

The court explained:

“The evidence of the father’s failure to pay child support as ordered constituted prima facie evidence of a willful violation, and the father did not meet his burden of offering competent, credible evidence of his inability to comply with the required payments.”

WHAT THIS MEANS:

When a parent fails to pay court-ordered child support, that failure alone can establish a willful violation unless the parent proves an inability to pay with credible evidence.

Martucci v. Nerone, — NYS3d — (2nd Dep’t 2024).

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A court considering an application for pendente lite child support is not required to calculate the obligation pursuant to the Child Support Standards Act. Although the CSSA provides formulas and factors for determining a final award of child support, courts addressing temporary support requests may apply those standards in their discretion, but are not obligated to do so.

The court explained:

“The CSSA provides the formulas to be applied to the parties’ income and the factors to be considered in determining a final award of child support.”

The court further noted:

“Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so.”

WHAT THIS MEANS:

When issuing temporary child support orders during a case, courts may use CSSA guidelines, but are not required to calculate support using the statutory formula.

Gonzalez Furtado v. Furtado, — NYS3d — (2nd Dep’t 2023).

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Where a settlement agreement establishing child support was executed before the effective date of the 2010 amendments to Family Court Act § 451, a party seeking modification must demonstrate an unreasonable and unanticipated change in circumstances since the agreement was made.

In this case, the mother sought to modify the child support provisions of a pre-2010 settlement agreement. The court held that she failed to establish the required standard. The circumstances cited—including reduced overnight parental access with the father, increased extracurricular and educational expenses for the children, and an increase in the father’s salary—did not constitute an unanticipated and unreasonable change in circumstances.

The court explained:

“To be entitled to modification of the child support provisions of the settlement agreement, the mother had the burden of showing an unreasonable and unanticipated change in circumstances since the time she entered into the settlement agreement.”

WHAT THIS MEANS:

When a child support agreement was executed before the 2010 statutory amendments, modification requires proof of an unreasonable and unanticipated change in circumstances.

Schulman v. Schulman, — NYS3d — (2nd Dep’t 2024).

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Enhanced earnings resulting from academic degrees and professional licenses obtained during the marriage may be subject to equitable distribution. However, the spouse seeking a distributive share must demonstrate that he or she made a substantial contribution to the acquisition of that asset.

In this case, the plaintiff sought an equitable distribution award relating to the defendant’s nursing degrees and licenses obtained during the marriage. The court declined to make such an award because the plaintiff failed to demonstrate a substantial contribution to the defendant’s acquisition of those credentials.

The court explained:

“Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate a substantial contribution to the titled party’s acquisition of that marital asset.”

WHAT THIS MEANS:

A spouse seeking an equitable distribution award based on the other spouse’s degree or professional license must prove a substantial contribution to obtaining that credential.

Ilyasov v. Ilyas, — NYS3d — (2nd Dep’t 2023).

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Debts incurred during the marriage for marital purposes are generally treated as marital liabilities and should be shared equally by the parties unless countervailing factors justify a different allocation. Such liabilities are distributed according to the general principles and factors governing equitable distribution.

In this case, the parties obtained a home equity line of credit during the marriage, secured by the marital residence. Because the debt was incurred during the marriage and remained outstanding before the divorce action began, the appellate court held that the obligation should be shared equally between the parties.

The court explained:

“The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors.”

WHAT THIS MEANS:

Marital debts incurred during the marriage are typically divided equally unless specific equitable factors justify a different allocation.

Ilyasov v. Ilyas, — NYS3d — (2nd Dep’t 2023).

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As a general rule, marital fault is not considered when determining equitable distribution. Courts may consider marital fault only in rare cases involving conduct so egregious and extraordinary that it shocks the conscience of the court.

In this case, the trial court reduced the plaintiff’s share of the defendant’s pension based on a finding that the defendant left the marital residence due to an abusive environment. The appellate court held that the record did not support a finding of misconduct so egregious as to justify consideration of marital fault in the equitable distribution analysis.

The court explained:

“The general rule in New York is that marital fault should not be considered in determining equitable distribution.”

The court further noted:

“Egregious marital fault may be considered as a factor only in rare cases involving egregious and extraordinary conduct which shocks the conscience of the court.”

WHAT THIS MEANS:

Marital fault generally does not affect the division of marital property unless the conduct is extraordinarily egregious and shocks the conscience of the court.

Ilyasov v. Ilyas, — NYS3d — (2nd Dep’t 2023).

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In a child support proceeding under Family Court Act article 4, the court has discretion to award counsel fees to the attorney representing the person asserting a child’s right to support. In determining an appropriate award, the court considers factors such as the parties’ ability to pay, the merits of their positions, the nature and extent of the legal services rendered, the complexity of the issues, and the reasonableness of counsel’s performance and fees.

The court explained:

“In a child support proceeding pursuant to Family Court Act article 4, the court, in its discretion, may award counsel fees to the attorney representing the person claiming a right to support on behalf of the child.”

WHAT THIS MEANS:

Courts may award attorney’s fees in child support cases after considering the parties’ finances, the merits of the dispute, the services performed, and the reasonableness of the fees.

Glass v. Glass, — NYS3d — (2nd Dep’t 2024).

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Although courts may afford some latitude to litigants who appear without counsel, a pro se litigant does not acquire greater rights than other parties and is held to the same standards of proof as litigants represented by attorneys.

The court explained:

“While courts may afford a pro se litigant some latitude, a pro se litigant acquires no greater right than any other litigant and is held to the same standards of proof as those who are represented by counsel.”

WHAT THIS MEANS:

Self-represented litigants may receive some procedural latitude, but they must meet the same legal and evidentiary standards as parties represented by counsel.

Bloom v. Hilpert, — NYS3d — (2nd Dep’t 2023).

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Courts have considerable discretion to impute income to a party so long as the determination has a basis in law and fact. A court is not required to accept a party’s account of his or her finances and may base imputed income on past income, demonstrated earning potential, or other financial evidence.

In this case, the trial court rejected both parties’ descriptions of their finances and imputed income based on the wife’s expenses and the husband’s average income over seven years of tax returns.

The court explained:

“A court need not rely upon a party’s own account of his or her finances but may impute income based upon past income or demonstrated earning potential.”

WHAT THIS MEANS:

Courts may impute income based on financial records, expenses, past earnings, or earning potential when a party’s reported income is not credible.

Bloom v. Hilpert, — NYS3d — (2nd Dep’t 2023).

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Property acquired during the marriage is presumed to be marital property. The party asserting that the property is separate bears the burden of proving that claim with clear evidence.

In this case, the husband asserted that he used separate property to acquire a particular asset but failed to provide supporting documentation. The court held that his unsupported testimony was insufficient to meet the required burden.

The court explained:

“Property acquired during the marriage is presumptively marital. The burden of proof is with the party who claims that the property is separate.”

WHAT THIS MEANS:

A party claiming that property acquired during the marriage is separate must provide clear proof supporting that claim.

Bloom v. Hilpert, — NYS3d — (2nd Dep’t 2023).

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The statutory right to counsel under Family Court Act § 262 provides protections equivalent to the constitutional standard of effective assistance in criminal cases. To establish ineffective assistance, a party must demonstrate that meaningful representation was not provided when the evidence, the law, and the circumstances of the case are viewed in their totality. Because attorneys are entitled to make strategic and tactical decisions during litigation, a party asserting ineffective assistance must show that there were no strategic or legitimate explanations for counsel’s alleged shortcomings.

The court explained:

“To establish that the plaintiff received the ineffective assistance of counsel, she is required to demonstrate that she was not afforded meaningful representation based upon the evidence, the law, and the circumstances of the particular case.”

The court further noted:

“To prevail on a claim of ineffective assistance of counsel, it is incumbent on the appellant to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings.”

WHAT THIS MEANS:

A claim of ineffective assistance in Family Court requires proof that counsel failed to provide meaningful representation and that the alleged errors were not the result of legitimate strategic decisions.

Sloan v. Sloan, — NYS3d — (2nd Dep’t 2024).

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The court’s paramount concern in any custody determination is the best interests of the child, assessed under the totality of the circumstances. In making that determination, the court considers factors including the parental guidance provided by the custodial parent, each parent’s ability to provide for the child’s emotional and intellectual development, each parent’s ability to provide financially, each parent’s relative fitness, and the effect of a custody award on the child’s relationship with the other parent. Although both parents here were found fit, the court determined that the father was better able to provide for the child’s overall well-being and was more willing than the mother to ensure meaningful contact between the child and the noncustodial parent. The appellate court held that the award of sole legal and residential custody to the father had a sound and substantial basis in the record.

The court explained:

“The court’s paramount concern when making any custody determination is the best interests of the children, as determined upon a consideration of the totality of the circumstances.”

The court further noted:

“Accepting the court’s credibility determinations, the record demonstrates that, although both parties are fit parents, the father is better able to provide for the child’s overall well-being and was more willing than the mother to assure meaningful contact between the child and the noncustodial parent.”

WHAT THIS MEANS:

A court may award sole legal and residential custody to one fit parent where the record supports that parent’s greater ability to promote the child’s overall well-being and maintain meaningful contact with the other parent.

Kim v. Becker, — NYS3d — (2nd Dep’t 2024).

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A noncustodial parent is entitled to reasonable parental access absent extraordinary circumstances, such as where parental access would be detrimental to the child’s well-being. Here, although the court upheld the award of sole legal and residential custody to the father, it disagreed with the Family Court’s access schedule, directing that the mother have parental access from Monday mornings until Wednesday evenings during the week and only one weekend per month.

The court explained:

“Absent extraordinary circumstances, such as where parental access would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable parental access privileges.”

WHAT THIS MEANS:

A court may not unduly restrict a noncustodial parent’s access unless extraordinary circumstances show that parental access would be detrimental to the child.

Kim v. Becker, — NYS3d — (2nd Dep’t 2024).

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It is within the court’s sound discretion to accept a belated order or judgment for settlement. A court should not deem an action or judgment abandoned where doing so would not afford repose to the court proceedings contemplated by 22 NYCRR 202.48 and would instead waste judicial resources. Here, the appellate court held that the Supreme Court providently exercised its discretion in denying the plaintiff’s motion to dismiss the complaint as abandoned because the defendant demonstrated good cause for the delay in submitting the judgment roll, and the late submission conferred finality on the proceedings and preserved judicial resources.

The court explained:

“It is within the sound discretion of the court to accept a belated order or judgment for settlement.”

The court further noted:

“A court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.”

WHAT THIS MEANS:

A missed deadline to submit a judgment or order does not automatically require dismissal where the court finds good cause, and accepting the late submission promotes finality and preserves judicial resources.

Gargano v. Gargano, — NYS3d — (2nd Dep’t 2023).

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A court is not bound by a party’s own account of finances and may impute income where there is a basis to do so. Here, the court found that the defendant’s claimed income from his medical practice and investment and rental income was not credible in light of significant discrepancies between his asserted gross income and his disclosed expenses, along with the absence of evidence that those expenses were not being paid on time. The court also relied on evidence that the defendant had provided the plaintiff with a credit card for the child’s expenses and later canceled it, while listing no credit card debt on his net worth statement. On that record, the court upheld the imputation of annual income of $300,000 to the defendant.

The court explained:

“A court is not bound by a party’s own account of their finances, and may impute income to a party where there is a basis to do so.”

The court further noted:

“Here, the Supreme Court appropriately found that the defendant’s asserted income from his medical practice and investment and rental income was not credible.”

WHAT THIS MEANS:

A court may impute income where a party’s claimed earnings are undermined by discrepancies in the financial record and the party’s account of finances is not credible.

Perrone v. Perrone, — NYS3d — (1st Dep’t 2024).

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A party’s failure to include a completed statement of net worth with a motion is not automatically fatal to a request for child support. The proper course where the statement is missing is to decline to hear the motion or deny it without prejudice to renewal upon compliance with the applicable requirements. Here, the appellate court held that the plaintiff’s omission was not fatal because the order on appeal recited that she later complied with a prior interim order directing submission of a completed statement of net worth, and the record on appeal was insufficient to permit review of the defendant’s claim to the contrary.

The court explained:

“Contrary to defendant’s contention, plaintiff’s failure to include a completed statement of net worth with her motion was not fatal to the request for child support.”

The court further noted:

“The proper course where a party fails to include the statement of net worth is to decline to hear the motion, or to deny it without prejudice to renewal upon compliance with the applicable requirements.”

WHAT THIS MEANS:

The absence of a net worth statement does not automatically require denial of a child support motion where the deficiency is later addressed or the record does not support the challenge.

Perrone v. Perrone, — NYS3d — (1st Dep’t 2024).

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Although courts should be reluctant to separate a child from siblings, that preference may yield where the child’s need for stability outweighs the preference for the child to remain with siblings. Here, the court held that the child’s need for stability outweighed the preference that she remain with her half-sisters.

The court explained:

“Although a court should be reluctant to separate a child from his or her siblings, here the child’s need for stability outweighs the preference for her to remain with her half-sisters.”

WHAT THIS MEANS:

A court may separate siblings in a custody determination where the record shows that the child’s need for stability outweighs the usual preference to keep siblings together.

Clarke v. Clarke, — NYS3d — (2nd Dep’t 2023).

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A parent is not entitled to a downward modification of child support where the reduction in income is voluntary and unsupported by proof of disability preventing continued work. Here, the father sought a downward modification based on retirement and claimed he was forced to retire because of bad knees and double knee replacement surgery. The Support Magistrate found that he failed to present medical proof that he was disabled and unable to continue operating his automotive repair business. The court held that any loss of income resulting from retirement was self-imposed because he retired by choice at age 62 while still having young children to support.

The court explained:

“The record supports the Support Magistrate’s determination that the father’s reduction in income was voluntary.”

The court further noted:

“As the Support Magistrate aptly put it, if in fact the father did sustain a loss in income as a result of his retirement, such loss was self-imposed.”

WHAT THIS MEANS:

A parent who retires by choice without medical proof establishing the inability to work may be found to have voluntarily reduced income and may be denied a downward modification of child support.

Rose v. Lewandowski, — NYS3d — (3rd Dep’t 2023).

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To prevail on a motion for civil contempt, the movant must prove by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the order was disobeyed by a party with knowledge of its terms, and that the movant was prejudiced by the offending conduct. Here, the court held that contempt could not be found because the language of the relocation provision in the parties’ parenting agreement was ambiguous and therefore did not constitute an unequivocal mandate for contempt purposes.

The court explained:

“To prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect; the order was disobeyed by a party who had knowledge of its terms and the movant was prejudiced by the offending conduct.”

The court further noted:

“The ambiguity in the language of the relocation provision of the parties’ parenting agreement foreclosed any finding that the terms were an unequivocal mandate for contempt purposes.”

WHAT THIS MEANS:

Civil contempt is unavailable where the governing order or agreement is ambiguous and does not clearly direct the conduct at issue.

Parada v. Herron, — NYS3d — (1st Dep’t 2024).

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The controlling inquiry in a relocation proceeding is the best interests of the child. Relevant factors include each parent’s reasons for seeking or opposing the move, the quality of the child’s relationships with the custodial and noncustodial parents, the impact of the move on future contact with the noncustodial parent, the extent to which the move may enhance the custodial parent’s and child’s lives economically, emotionally, and educationally, and the feasibility of preserving the noncustodial parent-child relationship through suitable visitation arrangements. Here, the court held that relocation to Long Island was in the children’s best interests because the record showed that their lives would be enhanced economically and emotionally.

The court explained:

“The guiding inquiry in a relocation proceeding remains the best interests of the child.”

The court further noted:

“Given the foregoing, it is abundantly clear that the children’s lives will be enhanced economically and emotionally by allowing the mother and the children to relocate to Long Island.”

WHAT THIS MEANS:

A relocation request is decided by examining the child’s best interests under the totality of the circumstances, including the effect of the move on the child’s life and on the relationship with the other parent.

Henry CC. v. Antoinette DD., — NYS3d — (3rd Dep’t 2023).

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In evaluating relocation, the court considers the totality of the circumstances bearing on the children’s best interests. Here, the record included a history of domestic violence perpetrated by the father against the mother, including verbal and physical abuse in front of the children. The court described that conduct as shocking and appalling and concluded that, in light of the full record, the determination permitting the mother and children to relocate was supported by a sound and substantial basis.

The court explained:

“Additionally, as thoroughly detailed by Family Court, there is a history of domestic violence perpetrated by the father against the mother.”

The court further noted:

“While we need not detail here the abhorrent acts of domestic violence, it must be stated that the father’s cruel and dangerous conduct is shocking and appalling.”

WHAT THIS MEANS:

A court may consider a parent’s history of domestic violence as part of the best-interests analysis in deciding whether relocation should be permitted.

Henry CC. v. Antoinette DD., — NYS3d — (3rd Dep’t 2023).

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A parent seeking downward modification of child support must demonstrate either a substantial change in circumstances or an involuntary reduction in income of 15% or more since entry of the judgment of divorce. Here, the father failed to make a showing, and his modification petition was denied.

The court explained:

“In support of his modification petition, the father failed to demonstrate the existence of a substantial change in circumstances or that there had been an involuntary reduction in his income by 15% or more since the judgment of divorce was entered.”

WHAT THIS MEANS:

A petition to reduce child support will be denied where the parent does not establish either a substantial change in circumstances or the required involuntary income reduction.

Salz v. Luce, — NYS3d — (2nd Dep’t 2024).

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The court held that the father’s challenge to the award of attorneys’ fees to the mother’s counsel for $48,150 in connection with the downward child support modification proceeding was without merit.

The court explained:

“The father’s contention that the Family Court erred by directing him to pay attorneys’ fees to the mother’s counsel of $48,150 in connection with the proceeding for a downward modification of his child support obligation is without merit.”

WHAT THIS MEANS:

A court may award attorney’s fees to the opposing party in a child support modification proceeding, and such an award will be upheld where the challenge lacks merit.

Salz v. Luce, — NYS3d — (2nd Dep’t 2024).

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Parental access with a noncustodial parent is presumed to be in the child’s best interests, but that presumption may be rebutted by a preponderance of the evidence showing that parental access would be harmful to the child. Here, the court found that the totality of the circumstances supported suspension of the father’s parental access based on evidence of disruptive conduct at the child’s school, damage to the mother’s car, a court-ordered mental health evaluation concluding that the father lacked empathy for the child’s needs and did not understand the effect of his conduct on the child’s mental welfare, and the child’s wishes.

The court explained:

“Parental access with a noncustodial parent is presumed to be in the best interests of a child; however, that presumption may be rebutted through a showing, by a preponderance of the evidence, that parental access would be harmful to the child.”

The court further noted:

“The totality of the circumstances supports the court’s determination that it is in the child’s best interests to suspend the father’s parental access.”

WHAT THIS MEANS:

The presumption favoring parental access may be overcome where the evidence shows that contact with the noncustodial parent would be harmful to the child.

Mazo v. Volpert, — NYS3d — (3rd Dep’t 2024).

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A court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as part of a visitation or custody order.

The court explained:

“A court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order.”

WHAT THIS MEANS:

A court may require counseling or treatment as part of a custody or parenting-time order where it determines that such a condition is appropriate.

Mazo v. Volpert, — NYS3d — (3rd Dep’t 2024).

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Forensic evaluations are not always necessary in custody disputes, but they may be appropriate where there are sharp factual disputes affecting the final determination. The court noted the longstanding recognition of the value of forensic evaluations of parents and children in custody matters.

The court explained:

“In custody disputes, the value of forensic evaluations of the parents and children has long been recognized.”

The court further noted:

“Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination.”

WHAT THIS MEANS:

A court may use a forensic evaluation in a custody case where factual disputes make such an evaluation useful to the custody determination.

Chu v. Chu, — NYS3d — (2nd Dep’t 2024).

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The court held that the Supreme Court should have granted relief removing the evaluator, deeming the evaluator’s report inadmissible at trial, and directing a refund of fees. The decision relied on the evaluator’s removal from the Mental Health Professionals Panel after a complaint, indicating that the Committee concluded the evaluator was no longer qualified to assist courts in reaching custody and visitation decisions. The court also noted that the evaluator issued the report more than six months after the deadline in the appointment order and that, by the time the motion was denied, the report was nearly a year and a half old, diminishing its probative value in the best-interests analysis.

The court explained:

“Here, the Supreme Court should have granted those branches of the plaintiff’s motion which were, in effect, to remove Abrams, in effect, to deem Abrams’s report inadmissible at trial, and for a refund of fees paid to Abrams.”

The court further noted:

“Abrams’s removal from the Mental Health Professionals Panel, resulting from a complaint made against him, therefore indicates that the Committee concluded that he was no longer qualified to assist courts in reaching an appropriate decision as to custody and visitation.”

WHAT THIS MEANS:

Where a court-appointed forensic evaluator is removed from the Mental Health Professionals Panel, and the report is untimely and stale, the court may be required to remove the evaluator, exclude the report, and direct a refund of fees.

Chu v. Chu, — NYS3d — (2nd Dep’t 2024).

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In a custody dispute between a parent and a non-parent, the parent has a superior right to custody unless the non-parent establishes surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances. That rule applies even where there was a prior consent order awarding custody to the non-parent. Domestic Relations Law § 72 provides that an extended disruption of custody constitutes an extraordinary circumstance, including a prolonged separation of at least 24 continuous months during which the parent voluntarily relinquished care and control of the child, and the child resided in the grandparent’s household. Once extraordinary circumstances are established, the court must consider the child’s best interests in determining custody. Here, the maternal grandfather established extraordinary circumstances by showing that the child was separated from the mother for more than 24 continuous months, during which the mother voluntarily relinquished care and control and the child lived with the maternal grandfather.

The court explained:

“In a child custody dispute between a parent and a non-parent, the parent has a superior right to custody that cannot be denied unless the non-parent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances.”

The court further noted:

“Here, the maternal grandfather sustained his burden of demonstrating the existence of extraordinary circumstances.”

WHAT THIS MEANS:

A non-parent may obtain standing to seek custody by proving extraordinary circumstances, including an extended disruption of custody in which the parent voluntarily relinquished care and control of the child for at least 24 continuous months.

Elisa F. v. Daniel D., — NYS3d — (2nd Dep’t 2024).

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Property acquired in exchange for separate property remains separate property, even if the exchange occurs during the marriage.

The court explained:

“Property that is acquired in exchange for separate property, even if the exchange occurs during the marriage, is separate property.”

WHAT THIS MEANS:

When separate property is exchanged for new property during the marriage, the newly acquired property remains separate property.

Aggarwal v. Aggarwal, — NYS3d — (4th Dep’t 2024).

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The court held that the determination that further parental access with the child would be detrimental to the child had a sound and substantial basis, based on the expert testimony and the child’s wishes. The court also held that the evidence justified suspension of the father’s child support obligation. The Family Court had determined that the mother did not establish that the father sexually abused the child, and also determined that the mother alienated the child from the father. The evidence further showed that the mother viewed visits as harmful, never encouraged the child about visits or the father-child relationship, encouraged the estrangement, deliberately frustrated visitation, and made no effort to help restore the relationship. Under those circumstances, the father’s child support obligation should have been suspended.

The court explained:

“Family Court’s determination that further parental access with the child would be detrimental to the child has a sound and substantial basis.”

The court further noted:

“Accordingly, under these circumstances, the court should have granted that branch of the father’s cross-motion which was to suspend his child support obligation.”

WHAT THIS MEANS:

A court may deny parental access where it would be detrimental to the child, and it may suspend child support where the evidence shows that the payee parent alienated the child from the payor parent and frustrated visitation.

Franklin v. Quinones, — NYS3d — (2nd Dep’t 2024).

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A court may award joint legal and residential custody with equal parenting time where the determination is supported by a sound and substantial basis in the record and the arrangement serves the child’s best interests. Joint custody is appropriate where there is no evidence that the parties are so hostile or antagonistic that they cannot put aside their differences for the benefit of the child. In this case, the court found that such hostility was absent and therefore properly awarded joint legal and residential custody with equal parenting time. The court also determined that imposing a distance requirement related to relocation was in the child’s best interests.

The court explained:

“Family Court’s determination that it was in the best interests of the child to award the parties joint legal and residential custody of the child and, in effect, equal parenting time has a sound and substantial basis in the record.”

The court further noted:

“As there is no evidence that the parties are so hostile or antagonistic toward each other that they would be unable to put aside their differences, the court properly awarded the parties joint legal and residential custody and, in effect, equal parenting time.”

WHAT THIS MEANS:

Joint legal custody with equal parenting time may be awarded where the record supports that the parents can cooperate and the arrangement serves the child’s best interests.

Trentacoste v. Alward, — NYS3d — (2nd Dep’t 2024).

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In a custody dispute between a parent and a non-parent, the parent has a superior right to custody unless the non-parent establishes surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances. This applies even where a prior consent order awarded custody to the non-parent. Under Domestic Relations Law § 72, an extended disruption of custody—such as a prolonged separation of at least 24 continuous months during which the parent voluntarily relinquished care and control, and the child resided with a grandparent—constitutes an extraordinary circumstance. Once such circumstances are established, the court must determine custody based on the child’s best interests. Here, the maternal grandfather met that burden by demonstrating a prolonged separation exceeding 24 months during which the child lived with him and the mother relinquished care and control.

The court explained:

“In a child custody dispute between a parent and a non-parent, the parent has a superior right to custody that cannot be denied unless the non-parent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances.”

The court further noted:

“Here, the maternal grandfather sustained his burden of demonstrating the existence of extraordinary circumstances.”

WHAT THIS MEANS:

A non-parent may obtain standing to seek custody by proving extraordinary circumstances, including an extended period during which the parent voluntarily relinquished care and control of the child.

Elisa F. v. Daniel D., — NYS3d — (2nd Dep’t 2024).

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Property acquired in exchange for separate property remains separate property, even if the transaction occurs during the marriage.

The court explained:

“Property that is acquired in exchange for separate property, even if the exchange occurs during the marriage, is separate property.”

WHAT THIS MEANS:

Exchanging separate property for new property during the marriage does not convert it into marital property.

Aggarwal v. Aggarwal, — NYS3d — (4th Dep’t 2024).

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The court held that the determination denying further parental access was supported by a sound and substantial basis, based on expert testimony and the child’s wishes. The court also held that the evidence warranted suspension of the father’s child support obligation. The record showed that the mother failed to establish abuse, alienated the child from the father, viewed visits as harmful, failed to encourage the relationship, and deliberately frustrated visitation without attempting to repair the relationship. Under those circumstances, the father’s obligation should have been suspended.

The court explained:

“Family Court’s determination that further parental access with the child would be detrimental to the child has a sound and substantial basis.”

The court further noted:

“Accordingly, under these circumstances, the court should have granted that branch of the father’s cross-motion which was to suspend his child support obligation.”

WHAT THIS MEANS:

A court may both deny parental access where it is detrimental and suspend child support where the custodial parent has alienated the child and frustrated visitation.

Franklin v. Quinones, — NYS3d — (2nd Dep’t 2024).

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Under the doctrine of judicial estoppel, a party who assumes a position in a prior legal proceeding and secures a favorable judgment is precluded from taking a contrary position in a later proceeding simply because his or her interests have changed. In this case, the father previously obtained an order granting him parental access based on his assertion that he was a parent to the child. The court held that he was therefore barred from later claiming that he was not a parent to avoid child support obligations.

The court explained:

“Under the doctrine of judicial estoppel, a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed.”

The court further noted:

“Thus, the father is now judicially estopped from taking the inconsistent position that he is not a parent to the child for child support.”

WHAT THIS MEANS:

A party who successfully claims parental status to obtain parental access cannot later deny parentage to avoid paying child support.

Joseph v. Granderson, — NYS3d — (2nd Dep’t 2024).

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Where a New York court has made an initial custody determination, it retains exclusive, continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act until it determines that statutory conditions for relinquishing jurisdiction are met. A court may not summarily dismiss a petition based solely on the child residing out of state without considering whether it retains jurisdiction and allowing the parties to present evidence on that issue.

In this case, the Family Court dismissed the mother’s petitions because the child was living out of state with the father. The appellate court held that this was improper because the initial custody determination had been made in New York, and the court failed to consider whether it retained exclusive, continuing jurisdiction or allowed the mother to present evidence on that issue.

The court explained:

“[A] court of this state which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds… that it should relinquish that jurisdiction.”

The court further noted:

“Accordingly, the Family Court should not have summarily dismissed the mother’s petitions… without considering whether the court had exclusive, continuing jurisdiction… and allowing the mother to present evidence as to that issue.”

WHAT THIS MEANS:

A court cannot dismiss a custody case based on out-of-state residence without first determining whether it retains jurisdiction and allowing the parties to be heard on that issue.

Brandon v. Brady, — NYS3d — (2nd Dep’t 2024).

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A parent’s failure to pay child support as ordered constitutes prima facie evidence of a willful violation, shifting the burden to the parent to provide credible evidence of inability to pay. A voluntary decision that results in loss of employment does not excuse nonpayment.

In this case, the father chose not to comply with a COVID-19 vaccination requirement and thereby lost his employment. The court held that this choice constituted a willful violation of the support order. The father also failed to demonstrate reasonable efforts to obtain alternative employment, as his job search was limited to positions requiring vaccination, which posed the same barrier.

The court explained:

“The father’s admitted failure to pay support as ordered further constituted prima facie evidence of a willful violation and shifted the burden to him of going forward with credible evidence to rebut that finding, which he failed to do.”

The court further noted:

“[H]is choice to forgo his employment… rather than consent to vaccination, constituted a willful violation of the support order.”

WHAT THIS MEANS:

A parent cannot avoid a willful violation finding where nonpayment results from a voluntary decision that limits or eliminates employment opportunities.

Tanya N.C. v. Bryant P., — NYS3d — (1st Dep’t 2024).

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In determining the child’s best interests, the court considered that the mother had been the child’s primary caretaker and was more likely to foster a relationship between the child and the father. The record also established that joint custody was not appropriate in this case.

The court explained:

“The record further showed that the mother had always been the child’s primary caretaker, who was responsible for the day-to-day tasks and who was more likely to foster a relationship between the father and child.”

The court further noted:

“[T]he record established that joint custody was not appropriate in this case.”

WHAT THIS MEANS:

A parent’s role as primary caretaker and willingness to foster the child’s relationship with the other parent can support a custody determination, particularly where joint custody is not appropriate.

Chirag C. v. Jaimie D., — NYS3d — (1st Dep’t 2024).

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A parent seeking to reduce child support must show a substantial change in circumstances or a qualifying reduction in income and must demonstrate that the decrease occurred through no fault of the parent and that diligent efforts were made to obtain suitable employment. The court compares the parents’ circumstances at the time of the existing order with those at the time of the petition.

In this case, the father was already unemployed when the prior support order was entered, and his later loss of employment did not constitute a change in circumstances. The court also found that his proof of job search efforts was insufficient and that his medical evidence did not establish an inability to work.

The court explained:

“Family Court was required to compare the father’s circumstances as of that date to his circumstances at the time of the petition.”

The court further noted:

“[T]he record supports the Support Magistrate’s determination that the father’s limited proof of his employment search was insufficient to establish that he had undertaken diligent efforts at obtaining suitable employment.”

WHAT THIS MEANS:

A child support reduction will be denied where the parent cannot show a meaningful change from prior circumstances or fails to demonstrate diligent efforts to obtain employment.

Darling v. Darling, — NYS3d — (3rd Dep’t 2024).

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A motion for civil contempt must allege with particularity that the opposing party’s conduct was calculated to or actually did defeat, impair, or prejudice the movant’s rights or remedies.

The court explained:

“In an application for contempt, Movant must be pled with particularity that the conduct complained of was calculated to or actually did defeat, impair, or prejudice their rights or remedies.”

WHAT THIS MEANS:

A contempt application may be dismissed if it does not specifically allege how the opposing party’s conduct prejudiced the movant’s rights.

Koska v. Koska, — NYS3d — (2nd Dep’t 2024).

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Custody orders are subject to modification only upon a showing of a change in circumstances. A party may not file successive petitions based on the same operative facts, and entitlement to a hearing requires a threshold showing of changed circumstances. A court may restrict further filings where a party abuses the judicial process through repeated, meritless litigation.

In this case, after unsuccessful prior proceedings, the father filed multiple additional motions seeking similar relief. The court upheld an order enjoining him from filing further custody-related applications without leave of court.

The court explained:

“A disappointed litigant may not file successive custody modification petitions alleging only the same operative facts.”

The court further noted:

“[A] party may forfeit that right if they abuse the judicial process by engaging in meritless litigation motivated by spite or ill will.”

WHAT THIS MEANS:

Courts may require a showing of new circumstances for custody modifications and may bar repeated filings where a party abuses the process with duplicative or meritless claims.

Capruso v. Kubow, — NYS3d — (2nd Dep’t 2024).

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In evaluating the child’s best interests, the court considered factors including each parent’s ability to provide for the child’s development, overall well-being, and relationship with the other parent. Although both parents had a positive relationship with the child, the father was better suited to manage the child’s chronic medical needs and was more likely to foster the child’s relationship with the other parent. The court also noted that joint custody was inappropriate where the parents were unable to cooperate.

The court explained:

“Where parents have evidenced an inability to cooperate on matters concerning the child, joint custody is inappropriate.”

The court further noted:

“[T]he father appears better suited to manage the child’s chronic medical needs, and the father would foster a better relationship between the child and the other parent.”

WHAT THIS MEANS:

Custody may be awarded to the parent better able to address the child’s specific needs and foster a relationship with the other parent, particularly where joint custody is not viable.

Akerele v. Garnett, — NYS3d — (2nd Dep’t 2024).

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Where relocation arises in the context of an initial custody determination, it is considered as one factor among many in assessing the child’s best interests, rather than under a strict relocation analysis. The court evaluates factors such as stability, home environment, parental fitness, past performance, and the child’s wishes.

In this case, the court found that awarding the mother sole custody and permitting relocation was supported by the record, including the child’s adjustment, need for stability, and the mother’s past caregiving. A liberal parental access schedule preserved the father’s relationship with the child.

The court explained:

“[T]he relocation is but one factor among many for the Family Court to consider in determining what is in the best interests of the child.”

WHAT THIS MEANS:

In initial custody determinations, relocation is one factor within the broader best-interests analysis rather than a separate, controlling standard.

Wright v. Burke, — NYS3d — (2nd Dep’t 2024).

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A prior finding of neglect does not automatically bar a parent from being awarded custody. In determining the child’s best interests, the court considers the parent’s current circumstances, including completion of required services, changes in living situation, and demonstrated insight into past issues. Joint legal custody may be appropriate where the parties can cooperate, and the record does not show significant conflict.

In this case, the court found that the mother had addressed the issues underlying the neglect finding, resumed care of the child, and taken an active role in the child’s needs. The record also did not show disputes or acrimony that would preclude joint custody.

The court explained:

“Contrary to the father’s contention, a finding of neglect against the mother is not a bar to her being awarded custody.”

WHAT THIS MEANS:

A parent with a prior neglect finding may still obtain custody if the record shows remediation of prior issues and supports that custody is in the child’s best interests.

D.T. v. A.G., — NYS3d — (1st Dep’t 2024).

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To vacate a default, a party must demonstrate both a reasonable excuse for failing to appear and a meritorious defense. Courts favor resolving custody matters on the merits and apply a liberal standard in such cases, recognizing that the absence of a full best-interests hearing itself may constitute a meritorious defense.

In this case, the father established a reasonable excuse based on unexpected car trouble and demonstrated intent to participate in the proceedings. The court also noted the lack of prejudice to the opposing party.

The court explained:

“To vacate a default judgment, the moving party is required to demonstrate both that there was a reasonable excuse for his or her failure to appear and that he or she had a meritorious defense against the allegations addressed at the hearing.”

WHAT THIS MEANS:

A default in a custody case may be vacated where the party provides a reasonable excuse and shows a potentially meritorious defense, with courts favoring determinations on the merits.

Savanna II. v. Joshua JJ., — NYS3d — (2nd Dep’t 2024).

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The rule from Mahoney-Buntzman v. Buntzman provides that a party to litigation may not take a position contrary to one taken on an income tax return. However, the court may decline to apply that principle where both parties have taken inconsistent positions in their tax filings. In this case, the husband argued that the wife should be precluded from taking a position inconsistent with prior tax returns. The court rejected that argument, noting that the parties’ pre- and post-commencement tax returns conflicted and that the husband himself prepared joint returns characterizing the income as passive. The court found that both parties had effectively taken inconsistent positions and declined to apply the doctrine.

The court explained:

“This Court certainly recognizes the Court of Appeals holding in Mahoney-Buntzman v. Buntzman… that a party to litigation may not take a position contrary to a position taken in an income tax return.”

The court further noted:

“Because of these conflicting positions taken by both parties on their tax returns, the Court declines to apply Mahoney-Buntzman in this instance and to the facts of this matter.”

WHAT THIS MEANS:

A court may decline to apply the Mahoney-Buntzman rule where both parties have taken inconsistent positions on their tax returns and the record does not support applying the doctrine to only one party.

L.K.F. v. M.T.F., — NYS3d — (Sup Ct 2024).

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A parent may be found to have neglected a child by failing to provide adequate shelter where the home is maintained in an unsanitary, deplorable, or unsafe condition, as such conditions imply an imminent danger to the child’s health. However, a merely messy or disorganized home is generally insufficient to support a neglect finding absent proof of unsanitary or unsafe conditions. Additionally, even unsanitary conditions may not warrant a finding of neglect if they are temporary and improve over time. In this case, the evidence established that the mother maintained the home in deplorable and unsanitary conditions over an extended period, including garbage and soiled diapers throughout the home, old food and containers left in living areas, unremedied spills, and soiled bedding. The evidence also showed that the children appeared unbathed and malodorous. Based on this record, the court upheld the finding of neglect.

The court explained:

“A parent or caretaker may be found to have neglected a child by failing to supply the child with adequate shelter based on the unsanitary, deplorable, or otherwise unsafe conditions of the home.”

The court further noted:

“[T]he evidence adduced at the fact-finding hearing established that the mother maintained the children’s home in a deplorable and unsanitary condition.”

WHAT THIS MEANS:

A messy home alone is not neglect, but sustained unsanitary and unsafe living conditions that endanger a child’s health can support a finding of neglect.

Matter of Kaira K., — NYS3d — (2nd Dep’t 2024).

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In determining custody, courts consider the child’s best interests, including which parent has been the primary caregiver, each parent’s involvement in the child’s education and medical care, and each parent’s willingness to foster the child’s relationship with the other parent. Here, although both parents were fit and had a relationship with the child, the mother had been the primary caregiver and demonstrated greater involvement in the child’s educational and medical needs. The father had minimal involvement in school and medical matters and engaged in conduct that raised concerns about his ability to promote the child’s relationship with the mother. The court also found that the parties’ contentious relationship and inability to communicate weighed against joint custody.

The court explained:

“[T]he mother had been the child’s primary caregiver for the majority of his life and was capable of providing a more stable environment for the child.”

The court further noted:

“The fact that the parties had a contentious relationship and could not communicate or share information about the child in a productive way… further militates against an award of joint custody in this case.”

WHAT THIS MEANS:

Custody may be awarded to the parent who has been the primary caregiver and is more involved in the child’s needs, and joint custody may be denied where the parents cannot effectively communicate or cooperate.

Daniel B. v. Deshauna S., — NYS3d — (1st Dep’t 2024).

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Under the Uniform Child Custody Jurisdiction and Enforcement Act, New York courts may exercise jurisdiction to make an initial custody determination if New York is the child’s home state. Where jurisdictional facts are in dispute, the court must hold a hearing and allow the parties to present evidence before determining whether it has jurisdiction.

In this case, the Family Court dismissed the father’s petition without a hearing, despite evidence that the children had lived in the United States for approximately two years and that both parties provided New York addresses, as well as a dispute regarding whether a foreign court had already made a custody determination. The appellate court held that a hearing was required to resolve these issues.

The court explained:

“UCCJEA defines ‘home state’ as ‘the state in which a child lived with a parent … for at least six consecutive months immediately before the commencement of a child custody proceeding.’”

The court further noted:

“[T]he Family Court should have held a hearing to determine whether New York State was the children’s home state… and whether an initial custody determination has already been made.”

WHAT THIS MEANS:

A court must hold a hearing on jurisdiction under the UCCJEA where the child’s home state or prior custody determinations are in dispute.

Olivos v. Quiroz, — NYS3d — (2nd Dep’t 2024).

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A support order entered on consent must be based on knowing and voluntary agreement. Where the court provides incorrect information that affects a party’s understanding of their rights or burdens, the resulting consent may not be valid.

In this case, the Support Magistrate incorrectly stated that the mother would bear the burden of proving the father’s income at a hearing. The allocution did not correct this error. As a result, the appellate court found that the mother’s consent to the support order was not knowingly given and that her objections should have been granted.

The court explained:

“Generally, when an order of support is entered on the parties’ consent, that consent must be given knowingly and voluntarily.”

The court further noted:

“[I]t cannot be said that the mother’s consent to the order of support was given knowingly.”

WHAT THIS MEANS:

A consent child support order may be overturned where a party’s agreement was not knowing and voluntary due to incorrect information provided by the court.

Barrows v. Ryan, — NYS3d — (2nd Dep’t 2024).

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A court may award counsel fees at any stage of a proceeding under Family Court Act article 4. In determining an appropriate award, the court considers factors including the parties’ ability to pay, the merits of their positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and fees. The determination is committed to the sound discretion of the court and must be based on the totality of the circumstances, including the equities of the particular case. Here, the court held that awarding counsel fees to the mother was appropriate under the circumstances.

The court explained:

“A court may allow counsel fees at any stage of a proceeding under Family Court Act article 4.”

The court further noted:

“Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case.”

WHAT THIS MEANS:

Family Court has discretion to award counsel fees in child support proceedings after considering the parties’ finances, the merits of their positions, and the overall equities of the case.

Marcus v. Marcus, — NYS3d — (2nd Dep’t 2024).

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A party’s entitlement to reasonable attorney’s fees under Family Court Act § 438(b) is not affected by the fact that the party is represented by pro bono counsel. In this case, the court held that the mother’s representation by pro bono counsel did not preclude an award of attorney’s fees.

The court explained:

“The fact that pro bono counsel represented the mother did not affect her entitlement to reasonable attorneys’ fees under Family Court Act § 438(b).”

WHAT THIS MEANS:

A party may still be awarded attorney’s fees in a Family Court proceeding even if represented by pro bono counsel.

Martucci v. Nerone, — NYS3d — (2nd Dep’t 2024).

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In a divorce action, substituted service requires court authorization upon a showing that personal service could not be made with due diligence. A court lacks personal jurisdiction over a defendant who is not properly served. In this case, the plaintiff attempted to serve the defendant by email without a court order authorizing such service and failed to establish that the defendant consented to email service. As a result, the service was ineffective.

The court explained:

“A court lacks personal jurisdiction over a defendant who is not properly served with process.”

The court further noted:

“[A]bsent a court order authorizing service by email, the service was ineffective.”

WHAT THIS MEANS:

Service by email in a divorce case is invalid unless authorized by the court or properly consented to by the defendant.

Rae v. Marciano, — NYS3d — (2nd Dep’t 2024).

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A party seeking modification of custody must show a change in circumstances such that modification is necessary to ensure the child’s best interests. Joint custody is appropriate only where parents can cooperate. A deteriorating and acrimonious relationship that makes joint decision-making untenable constitutes a change in circumstances warranting modification to sole custody. In this case, the continued deterioration of the parties’ relationship supported modification of the joint custody arrangement.

The court explained:

“Evidence of a hostile relationship between the mother and the father, indicating that joint decision-making is untenable, is a change of circumstances.”

The court further noted:

“[T]he record demonstrates that the continued deterioration of the parties’ relationship was a change in circumstances warranting a change in the parties’ joint legal custody arrangement.”

WHAT THIS MEANS:

Joint custody may be converted to sole custody where the parents’ relationship becomes too acrimonious to allow effective joint decision-making.

Zambas v. Condon, — NYS3d — (2nd Dep’t 2024).

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Although custody determinations are generally made after a full evidentiary hearing, a hearing is not required where the relevant facts are undisputed and sufficient to determine the child’s best interests. In this case, the father’s probation prohibited contact with the children due to a conviction involving sexual abuse, and registry records confirmed his status as a level 2 sex offender. The father failed to raise a triable issue of fact, and his conclusory allegations were insufficient to defeat summary judgment. The court, therefore, properly awarded sole custody to the mother without a hearing.

The court explained:

“[A] hearing is not required where undisputed facts are before the court.”

The court further noted:

“As such, the undisputed facts before the court enabled it, without a hearing, to make a provident determination that it was in the best interests of the children to award sole legal and physical custody to the mother.”

WHAT THIS MEANS:

A court may decide custody without a hearing where the material facts are undisputed and support a determination of the child’s best interests.

Palumbo v. Palumbo, — NYS3d — (2nd Dep’t 2024).

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A court may award child support during litigation even where the parties continue to reside together, provided the award is necessary to meet the reasonable needs of the children. The court may also award interim attorney’s fees based on the parties’ financial circumstances, including where one party is the less monied spouse. There is no requirement that the recipient exhaust personal assets before receiving such an award.

In this case, the court upheld an award of temporary child support and interim attorney’s fees, finding no impermissible double shelter allowance and determining that the awards were appropriate given the parties’ circumstances.

The court explained:

“That the parties lived together… does not bar an award of child support where there is evidence that the award is necessary to maintain the reasonable needs of the children during litigation.”

The court further noted:

“There is no requirement that she spend down a substantial portion of her assets to qualify for an award of attorneys’ fees.”

WHAT THIS MEANS:

Child support may be awarded even if the parties are living together during litigation, and interim attorney’s fees may be granted based on financial need without requiring a party to deplete assets.

Wolinsky v. Berkowitz, — NYS3d — (1st Dep’t 2024).

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A court’s authority to dismiss a complaint sua sponte should be exercised sparingly and only in extraordinary circumstances. In this case, there was no motion to dismiss the complaint or to change venue, yet the lower court dismissed the complaint. The appellate court held that such action was improper absent extraordinary circumstances.

The court explained:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal.”

WHAT THIS MEANS:

Courts should not dismiss cases on their own initiative unless extraordinary circumstances justify such action.

Ivashchenko v. Borukhov, — NYS3d — (2nd Dep’t 2024).

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An account stated is an independent cause of action that may be asserted alongside a breach of contract claim and is not duplicative. A law firm may obtain summary judgment on an account stated claim where the client receives invoices for professional services, retains them without objection within a reasonable time, and fails to pay. This remains true even where a retainer agreement governs the relationship. In this case, the court granted summary judgment to the law firm on its account stated claims based on the defendant’s receipt and retention of invoices without objection.

The court also upheld dismissal of the defendant’s counterclaim seeking return of legal fees, finding that an accord and satisfaction had been reached where the defendant agreed in writing to pay a reduced amount in satisfaction of the outstanding balance.

The court explained:

“[A]n account stated is an independent cause of action that can be asserted simultaneously with a breach of contract claim and… should not be dismissed as duplicative of a breach of contract claim.”

The court further noted:

“[A]n attorney can be granted summary judgment on an account stated claim based on the defendant’s receipt and retention of… invoices… without objection within a reasonable time, even where there is a retainer agreement.”

WHAT THIS MEANS:

A law firm may recover unpaid fees through an account stated claim where invoices are retained without objection, even if a retainer agreement exists, and such a claim may be brought alongside breach of contract.

Aronson Mayefsky & Sloan, LLP v. Praeger, — NYS3d — (1st Dep’t 2024).

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A parent has a superior right to custody that may only be overcome upon proof of extraordinary circumstances, including surrender, abandonment, persistent neglect, unfitness, or an extended disruption of custody. An extended disruption generally requires a prolonged separation during which the parent voluntarily relinquishes care and control of the child. Courts also consider the quality of the relationship between the child and the non-parent and the duration of time the parent permitted the arrangement.

In this case, the court found no extraordinary circumstances. The child’s separation from the mother was not voluntary, as the child was left to live with the father against the mother’s wishes while she was actively seeking custody. The child had only briefly resided with the grandmother, and the grandmother’s own conduct—including encouraging the child to run away and undermining the mother—contributed to the situation. The mother was found to be fit and had consistently sought custody. As a result, the grandmother lacked standing, and the court did not reach a best-interests analysis.

The court explained:

“The Domestic Relations Law provides that an ‘extended disruption of custody’ constituting extraordinary circumstances… [includes] a prolonged separation… for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child.”

The court further noted:

“As the court correctly dismissed the grandmother’s petition for custody of the child for lack of standing, we need not engage in a best interests analysis.”

WHAT THIS MEANS:

A non-parent cannot seek custody without first proving extraordinary circumstances, and where that showing is not made, the court will dismiss the petition without considering the child’s best interests.

Trina L. v. Michelene M., — NYS3d — (1st Dep’t 2024).

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The Child Support Standards Act provides that courts calculate child support by applying statutory percentages to combined parental income up to a statutory cap. Where income exceeds that cap, the court has discretion to apply the statutory percentage, the statutory factors, or both. However, the court must articulate its reasoning for how it calculates support on income above the cap, including consideration of the statutory factors such as the parties’ financial resources and the standard of living the child would have enjoyed had the household remained intact.

In this case, the court relied on the parties’ prior stipulation to apply the statutory percentage to all income, including amounts above the cap. The appellate court found that this was not an adequate rationale and that the record did not support applying the percentage above the cap. Accordingly, the court limited the calculation to the statutory cap without additional support based on excess income.

The court explained:

“[T]he court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap.”

The court further noted:

“[T]he parties’ agreement… did not provide an appropriate rationale for the court’s calculation of child support on the combined parental income exceeding the statutory cap.”

WHAT THIS MEANS:

Courts must explain their reasoning when applying child support to income above the statutory cap, and absent such justification, support may be limited to the capped amount.

Munsterman v. Munsterman, — NYS3d — (2nd Dep’t 2024).

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There is a rebuttable presumption that counsel fees should be awarded to the less monied spouse. However, in exercising its discretion, the court must consider the parties’ financial circumstances, the merits of their positions, and whether either party engaged in unnecessary or dilatory litigation conduct that increased costs.

In this case, the appellate court held that the award of counsel fees to the plaintiff was an improvident exercise of discretion. The record showed that the defendant’s positions were not without merit, the issues were resolved in part by stipulation, and the defendant did not engage in dilatory tactics. Additionally, the defendant was the less-monied spouse, and the fee award depleted her available resources.

The court explained:

“There is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.”

The court further noted:

“[T]he defendant’s conduct in the litigation did not constitute dilatory tactics.”

WHAT THIS MEANS:

Even where a presumption favors awarding counsel fees to the less monied spouse, courts may deny or reverse such awards based on the parties’ conduct, the merits of their positions, and the overall financial impact.

Munsterman v. Munsterman, — NYS3d — (2nd Dep’t 2024).

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An increase in the value of separate property remains separate property unless the appreciation is attributable, in part, to the contributions or efforts of the other spouse. Contributions may be direct or indirect, including financial support or services such as homemaking.

In this case, the court awarded the defendant a portion of the appreciation in the value of a business, finding that although the defendant did not make direct contributions, her indirect contributions as a homemaker supported an equitable distribution award.

The court explained:

“[A]ny appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property.”

WHAT THIS MEANS:

A spouse may be entitled to a share of the increased value of the other spouse’s separate property if that appreciation is linked to the spouse’s contributions to the marriage.

Rigas v. Rigas, — NYS3d — (2nd Dep’t 2024).

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The Child Support Standards Act requires courts to follow a three-step process, including determining combined income, applying statutory percentages up to the cap, and then deciding how to treat income above the cap. Courts may apply the statutory percentage to all or part of the excess income or consider statutory factors to determine an appropriate award.

In this case, the court properly used the plaintiff’s full income, which exceeded the cap, after considering the parties’ financial resources and the standard of living the children would have enjoyed.

The court explained:

“[W]here the combined parental income exceeds the statutory baseline, the court may apply the statutory percentage to all or part of the income over the baseline, or it may consider the statutory factors.”

WHAT THIS MEANS:

Courts have discretion to apply child support percentages to income above the statutory cap, provided they consider the statutory factors and circumstances of the parties.

Rigas v. Rigas, — NYS3d — (2nd Dep’t 2024).

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The purpose of maintenance is to provide the recipient spouse with an opportunity to become economically independent. The amount and duration are determined based on the facts of each case, including factors such as the length of the marriage and the recipient’s work history.

In this case, the appellate court found that the trial court should have awarded maintenance where the defendant had no work experience due to her role as a homemaker, but could become self-supporting. The court awarded maintenance for a limited period to allow her to achieve independence.

The court explained:

“The overriding purpose of a maintenance award is to give the spouse economic independence.”

WHAT THIS MEANS:

Maintenance is intended to provide temporary financial support to allow a spouse time to become self-sufficient.

Rigas v. Rigas, — NYS3d — (2nd Dep’t 2024).

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Attorneys seeking fees in matrimonial matters must substantially comply with specific regulatory requirements governing retainer agreements and billing practices. Failure to demonstrate such compliance on a prima facie basis precludes recovery of fees.

In this case, the court denied the defendant’s request for attorney’s fees because her counsel failed to comply with applicable rules, including charging rates above those in the retainer agreement without written amendment, billing for excluded services, and failing to provide adequate billing detail and timely invoices.

The court explained:

“The failure to substantially comply with [the rules] will preclude an attorney’s recovery of a legal fee from his or her client.”

WHAT THIS MEANS:

Attorney’s fees may be denied where counsel does not substantially comply with required billing and retainer agreement rules.

Rigas v. Rigas, — NYS3d — (2nd Dep’t 2024).

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When separate property is converted into marital property, such as by placing it into joint title, the contributing spouse may still be entitled to a credit for the original separate property contribution prior to equitable distribution.

In this case, the plaintiff converted his separate property residence into marital property by adding the defendant to the deed. The court held that he was still entitled to a separate property credit for his initial contribution, calculated based on the value of the property at the time of the marriage minus the mortgage.

The court explained:

“[W]here a party contributes his or her separate property towards the purchase of a marital asset… the party should be awarded a credit for the amount so contributed.”

WHAT THIS MEANS:

A spouse who contributes separate property to a marital asset may receive a credit for that contribution even if the property is later treated as marital.

Jones v. Jones, — NYS3d — (2nd Dep’t 2024).

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A non-parent must establish extraordinary circumstances to overcome a parent’s superior right to custody. These may include surrender, abandonment, persistent neglect, unfitness, or an extended disruption of custody involving voluntary relinquishment by the parent.

In this case, the court found no extraordinary circumstances. The mother’s temporary incarceration did not constitute voluntary relinquishment, and she consistently sought to regain custody. The extended separation occurred during ongoing litigation and did not establish extraordinary circumstances. The record also did not support findings of unfitness or neglect.

The court explained:

“The burden of proof is on the non-parent to prove such extraordinary circumstances.”

The court further noted:

“In light of the absence of extraordinary circumstances, an inquiry into the best interests… is not triggered.”

WHAT THIS MEANS:

A non-parent cannot pursue custody without first proving extraordinary circumstances, and absent such proof, the court will not consider the child’s best interests.

Teofilo R.F. v. Tanairi R.F., — NYS3d — (2nd Dep’t 2024).

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A custodial parent’s interference with the child’s relationship with the noncustodial parent is considered conduct so inconsistent with the child’s best interests that it raises a strong probability that the offending parent is unfit to act as custodial parent. In this case, the father interfered with the relationship between the mother and the child by making false allegations to ACS and encouraging the child to lie, which undermined the mother’s relationship with the child and caused trauma through repeated investigations. The court also considered the effect of domestic violence committed by the father against the mother, which was established by a preponderance of the evidence. Based on these factors, the court determined that awarding sole legal and physical custody to the mother was in the child’s best interests.

The court explained:

“A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.”

The court further noted:

“[T]he Supreme Court was required to, and properly did, consider the deleterious effect on the child of the acts of domestic violence committed by the father against the mother in the home.”

WHAT THIS MEANS:

Parental alienation and domestic violence are significant factors in custody determinations and may support awarding sole custody to the other parent.

Duran v. Contreras, — NYS3d — (2nd Dep’t 2024).

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A court may impute income to a parent based on prior earning capacity, including earnings before incarceration. In this case, the court properly imputed an annual income of $75,000 to the father based on the parties’ agreement and his earning capacity before incarceration. Additionally, the court has no authority to reduce or cancel accrued child support arrears.

The court explained:

“[T]he court providently exercised its discretion in imputing an annual income to the father… based upon… the father’s earning capacity before his incarceration.”

The court further noted:

“[T]he court had no discretion to reduce or cancel child support arrears that accrued.”

WHAT THIS MEANS:

Courts may base child support on a parent’s prior earning capacity and cannot forgive accrued arrears.

Pelcak v. Matousek, — NYS3d — (2nd Dep’t 2024).

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Proof that a parent failed to pay child support as ordered constitutes prima facie evidence of a willful violation, shifting the burden to the parent to provide competent and credible evidence of an inability to pay. In this case, the father failed to meet that burden, as he did not demonstrate diligent efforts to obtain employment or otherwise establish an inability to comply, despite claiming sporadic work and immigration-related issues.

The court explained:

“Evidence of a failure to pay support as ordered constitutes prima facie evidence of a willful violation.”

The court further noted:

“[T]he father failed to meet his burden of offering competent, credible evidence of his inability to make the required payments.”

WHAT THIS MEANS:

Nonpayment of child support is presumed willful unless the paying parent proves a genuine inability to pay.

Franco v. Paez, — NYS3d — (2nd Dep’t 2024).

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While parents may use reasonable physical force for discipline, excessive corporal punishment constitutes neglect, and even a single incident may be sufficient. Additionally, neglect of one child may support a finding of derivative neglect as to other children, where the conduct reflects impaired parental judgment.

In this case, the court found neglect where the parents inflicted excessive corporal punishment and failed to seek medical attention despite awareness of the child’s self-harm.

The court explained:

“[T]he use of excessive corporal punishment constitutes neglect.”

The court further noted:

“A single incident of excessive corporal punishment may suffice to sustain a finding of neglect.”

WHAT THIS MEANS:

Excessive physical discipline can support a neglect finding, even based on a single incident, and may extend to other children in the household.

Matter of Leah S., — NYS3d — (2nd Dep’t 2024).

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A court may not delegate its authority to determine parenting time to a parent or to the child.

The court explained:

“The court cannot delegate its authority to determine parenting time to either a parent or a child.”

WHAT THIS MEANS:

Only the court may set parenting time schedules; it cannot leave that decision to the parties or the child.

Theressa M. v. Gaddiel M., — NYS3d — (3rd Dep’t 2024).

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A request for modification is evaluated by comparing the parties’ financial circumstances at the time of the original order and at the time of the application. In this case, although the mother sought an upward modification, the father’s income at the time of the application was lower than at the time of the agreement. The court rejected the argument that the income listed in the stipulation served as a baseline for comparison.

The court explained:

“In determining if there is a substantial change in circumstances… such change is measured by comparing the parties’ financial circumstances at the time of the application… and the time when the order… was made.”

WHAT THIS MEANS:

A modification will be denied if the payor’s income has not increased since the time of the original agreement.

Marianne L. v. Thomas L., — NYS3d — (1st Dep’t 2024).

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Marriage is treated as an economic partnership in which both assets and liabilities must be equitably distributed upon dissolution.

The court explained:

“The marriage relationship is an economic partnership.”

The court further noted:

“[C]ourts are required to equitably distribute not only the assets… but also the liabilities.”

WHAT THIS MEANS:

Both marital assets and debts are subject to equitable distribution upon divorce.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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The party alleging waste must prove by a preponderance of the evidence that the other spouse dissipated marital assets recklessly or in bad faith. An unsuccessful business investment alone does not constitute waste.

In this case, the court found no waste where a business was purchased with consent and later sold at a loss, as there was no evidence of recklessness or bad faith.

The court explained:

“The party alleging… wasteful dissipation… bears the burden of proving such waste by a preponderance of the evidence.”

WHAT THIS MEANS:

A failed investment does not constitute marital waste without proof of reckless or bad-faith conduct.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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Funds in a joint account are presumed marital property. A party claiming separate property must rebut that presumption with clear and convincing evidence that the funds remained separate and were placed in the joint account only for convenience.

In this case, the court found that the plaintiff failed to overcome the presumption where funds from a joint account were used to reacquire a business.

The court explained:

“There is a presumption that commingled property is marital property.”

WHAT THIS MEANS

Money placed into joint accounts is generally treated as marital property unless clearly proven otherwise.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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Parental rights may be terminated upon clear and convincing evidence that the parent is presently and foreseeably unable to care for the child due to mental illness. There is no requirement that the agency demonstrate diligent reunification efforts in such cases.

In this case, expert testimony established that the mother’s schizophrenia impaired her ability to parent and posed a risk to the child, and the mother failed to rebut that evidence.

The court explained:

“[C]lear and convincing evidence… supported the determination that the mother is… unable to provide proper and adequate care… by reason of mental illness.”

WHAT THIS MEANS:

Parental rights may be terminated based on mental illness without proof of reunification efforts, where clear and convincing evidence shows the inability to parent.

Matter of K.Y.Z., — NYS3d — (2nd Dep’t 2024).

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A spouse alleging wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence. An unsuccessful investment made during the marriage does not, by itself, constitute marital waste absent evidence that the spouse acted recklessly or in bad faith. Here, the plaintiff failed to prove that the defendant’s purchase of a car wash with marital funds was wasteful dissipation. The record showed that the car wash was purchased with the plaintiff’s consent to provide income for the family during his incarceration and to give him a place to work upon release. Although the defendant later sold the car wash at a loss and in violation of a restraining order, the plaintiff had previously agreed to sell it for the same price ultimately obtained. The court therefore directed that the proceeds be shared equally.

The court explained:

“The party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence.”

The court further noted:

“[A]n unsuccessful investment into a business interest during a marriage is not subject to scrutiny in the absence of any evidence that a party acted recklessly or in bad faith.”

WHAT THIS MEANS:

A failed business investment made during the marriage is not marital waste unless the spouse alleging waste proves reckless or bad-faith conduct.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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There is a presumption that commingled property is marital property, and separate property may become marital property if it is commingled in a joint account. To overcome that presumption, the spouse claiming the property is separate must establish by clear and convincing evidence that the funds originated solely as separate property and that the joint account was created only for convenience, without any intent to create a beneficial interest. Here, the plaintiff used $250,000 from the parties’ joint checking account to reacquire a pharmacy that remained his separate property. The court held that he failed to establish that the funds in the joint account had been commingled solely for convenience and therefore awarded the defendant a credit for one-half of that amount.

The court explained:

“There is a presumption that commingled property is marital property, and separate property may become marital property if commingled in, for example, a joint account.”

The court further noted:

“To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest.”

WHAT THIS MEANS:

A spouse who uses money from a joint account must clearly prove the funds remained separate property, or the money will be treated as marital.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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A spouse seeking a credit for legal fees paid during the marriage must establish that the fees were paid with marital funds and not with the other spouse’s separate property. Here, the defendant sought a credit for one-half of $170,000 in legal fees paid in connection with the plaintiff’s defense to federal health care fraud charges. Although the court noted that the impact of one spouse’s criminal activity may be considered in equitable distribution under proper circumstances and that the fees were incurred in connection with wrongdoing involving the plaintiff’s separate property, the defendant failed to prove the source of the funds used to pay those fees. The court therefore denied the credit.

The court explained:

“The impact of one spouse’s criminal activity may be considered in determining issues of equitable distribution under proper circumstances and the legal fees here were incurred by the plaintiff in connection with wrongdoing involving his separate property.”

The court further noted:

“[T]he defendant failed to introduce evidence of the source of the funds used to pay the legal fees and, therefore, failed to establish that the legal fees were paid with marital funds and not with the plaintiff’s separate property.”

WHAT THIS MEANS:

A spouse is not entitled to reimbursement for the other spouse’s criminal defense fees without proof that marital funds, rather than separate property, paid those fees.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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A spouse seeking a credit for money paid by the other spouse during the marriage must prove that the payment was made with marital property rather than separate property. Here, the defendant sought a credit for one-half of a $20,000 payment allegedly made by the plaintiff to his paramour. The court denied the credit because the defendant offered no evidence that the payment came from marital funds.

The court explained:

“The Supreme Court also providently exercised its discretion in denying the defendant a credit in the sum of $10,000, representing one-half of a $20,000 payment made by the plaintiff to his alleged paramour during the marriage.”

The court further noted:

“[T]he defendant similarly provided no evidence that the plaintiff used marital property and not his separate property when making this payment.”

WHAT THIS MEANS:

A spouse cannot recover money allegedly paid to a paramour without proving that the payment came from marital property.

Kirshner v. Kirshner, — NYS3d — (2nd Dep’t 2024).

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Parental rights may be terminated upon clear and convincing evidence that the parent is presently and for the foreseeable future unable to provide proper and adequate care for the child by reason of mental illness. Here, the court-appointed clinical psychologist testified that the mother suffers from schizophrenia, that the condition affects her ability to parent, and that it places the child in danger of neglect if returned to her care. The psychologist’s opinion was based on interviews with the mother and a review of approximately ten years of medical records. The mother offered no rebuttal evidence, and the court drew a negative inference from her failure to testify. The court also rejected the mother’s contention that the agency was required to show diligent reunification efforts.

The court explained:

“Clear and convincing evidence, including expert testimony from the court-appointed clinical psychologist who examined the mother and reviewed all her available medical records, supported the determination that the mother is presently and for the foreseeable future unable to provide proper and adequate care for the child by reason of mental illness.”

The court further noted:

“Contrary to the mother’s argument, there is no requirement that the agency show that it made diligent efforts to reunite her with the child when it seeks to terminate parental rights by reason of mental illness.”

WHAT THIS MEANS:

Parental rights may be terminated for mental illness where clear and convincing evidence shows the parent cannot adequately care for the child, and the agency need not prove reunification efforts in that circumstance.

Matter of K.Y.Z., — NYS3d — (2nd Dep’t 2024).

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A contempt finding requires that the order allegedly violated clearly express an unequivocal mandate. Here, the court held that the plaintiff failed to establish contempt based on the defendant’s alleged noncompliance with pendente lite child support provisions because the relevant provisions of the prior orders did not clearly express an unequivocal mandate that could support contempt.

The court explained:

“It cannot be said that the relevant provisions of those orders clearly expressed an unequivocal mandate that could support a finding of contempt.”

WHAT THIS MEANS:

Contempt is unavailable where the order at issue does not clearly and unequivocally direct the conduct claimed to have been violated.

Silla v. Silla, — NYS3d — (2nd Dep’t 2024).

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To establish harassment in the second degree, a petitioner must prove by a preponderance of the evidence that the other party engaged in a course of conduct intended to harass, annoy, or alarm, that the petitioner was alarmed or seriously annoyed, and that the conduct served no legitimate purpose. Here, the mother failed to make a prima facie case. The father’s foul and disparaging language, though immature and inappropriate, occurred during a divorce and custody dispute and while the parties were discussing child visitation or responding to her messages. The court held that this conduct did not amount to harassment.

The court explained:

“The mother’s testimony failed to establish by a preponderance of the evidence that the father engaged in a course of conduct that was intended to harass, annoy, or alarm her, that she was alarmed or seriously annoyed by his conduct, and that his conduct served no legitimate purpose.”

The court further noted:

“His use of foul and disparaging language to the mother amidst a divorce and custody battle, although immature and inappropriate, did not rise to the level of harassment.”

WHAT THIS MEANS:

Insulting or hostile language exchanged during custody or visitation disputes does not necessarily constitute a family offense if the conduct does not satisfy the statutory elements of harassment.

S.M.N. v. B.T.N., — NYS3d — (2nd Dep’t 2024).

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There is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect where the child’s statements are corroborated. Here, the child’s hearsay statements were corroborated by the mother’s testimony, school records, and the father’s cross-examination testimony. The court therefore held that the statements were properly considered.

The court explained:

“It is well settled that there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child… where, as here, the statements are corroborated.”

The court further noted:

“Here, the child’s hearsay statements were corroborated by the testimony of the mother, documentation contained in the child’s school records, and the father’s testimony on cross-examination.”

WHAT THIS MEANS:

A child’s out-of-court statements may be used in abuse or neglect proceedings when other evidence sufficiently corroborates them.

King v. Pelkey, — NYS3d — (3rd Dep’t 2024).

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Objections to a Support Magistrate’s order must be filed within 35 days after mailing of the order to the aggrieved party, and the objecting party must serve a copy on the opposing party and file proof of that service with the court. Here, the father’s first objections were filed without proof of service, and his later objections were untimely. Because he did not challenge those determinations on appeal, the denial of his objections was affirmed.

The court explained:

“Pursuant to Family Court Act § 439(e), objections to an order of a support magistrate must be filed within 35 days after the mailing of the order to the aggrieved party.”

The court further noted:

“Family Court Act § 439(e) also provides that ‘a party filing objections shall serve a copy of such objections upon the opposing party,’ and that ‘proof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal.’”

WHAT THIS MEANS:

Objections to a Support Magistrate’s order will fail if they are not timely filed and served with proof of service as required by statute.

Hanisz v. Wright, — NYS3d — (2nd Dep’t 2024).

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A party seeking to vacate a default must show both a reasonable excuse for the default and a potentially meritorious claim or defense. Where no reasonable excuse is established, the court need not consider whether the party had a potentially meritorious position. Here, the defendant claimed mental and physical health issues, but failed to substantiate that those conditions prevented him from responding to the motion. The court therefore held that he failed to establish a reasonable excuse.

The court explained:

“A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion.”

The court further noted:

“The absence of a reasonable excuse for the default renders it unnecessary to determine whether the movant demonstrated the existence of a potentially meritorious opposition to the motion.”

WHAT THIS MEANS:

A motion to vacate a default will be denied if the party cannot first show a reasonable excuse, regardless of any claimed defense on the merits.

Fuchs-Goren v. Goren, — NYS3d — (2nd Dep’t 2024).

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Criminal contempt is used to vindicate the authority of the court and punish disobedience of a court order. It requires proof beyond a reasonable doubt that the alleged contemnor willfully violated an unequivocal mandate. Here, the court found sufficient evidence that the defendant willfully disobeyed an order directing her to encourage the child to go with a transport team by discouraging the child from cooperating.

The court explained:

“The purpose of criminal contempt is to vindicate the authority of the court and to punish the contemnor for disobeying a court order.”

The court further noted:

“The imposition of punishment for criminal contempt requires proof beyond a reasonable doubt that the alleged contemnor willfully violated a clear and unequivocal court mandate.”

WHAT THIS MEANS:

Criminal contempt may be imposed where a party knowingly and willfully violates a clear court order, and the violation is proven beyond a reasonable doubt.

Agulnick v. Agulnick, — NYS3d — (2nd Dep’t 2024).

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A court may modify custody and parental access upon a showing of a subsequent change in circumstances and that the modification is in the child’s best interests. One such change may be the deterioration of the parties’ relationship to the point that meaningful communication or cooperation no longer exists. Depending on the circumstances, a court may divide decision-making authority between the parents in separate areas, either to maintain each parent’s role in the child’s life or to reflect each parent’s strengths. Here, the court found a sound and substantial basis to award the father decision-making authority over the child’s educational needs and extracurricular activities.

The court explained:

“The required change in circumstances may be found to exist, among other circumstances, where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child.”

The court further noted:

“[W]hen an antagonistic relationship exists between the parties, it may be appropriate, depending upon the particular circumstances of the case, to give each party decision-making authority in separate areas.”

WHAT THIS MEANS:

Where co-parenting has broken down, a court may modify custody and allocate decision-making authority by subject matter if that arrangement best serves the child.

Narine v. Singh, — NYS3d — (2nd Dep’t 2024).

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The decision whether to conduct an in camera interview lies within the court’s discretion, but such an interview may be necessary where the child’s views are important to determining best interests. Here, the court held that it was an improvident exercise of discretion not to conduct an in camera interview because the child’s stated fear and hatred of the father, concerns about the father’s lifestyle, and strong wishes against parental access were central to the issue. The court found that the child was of sufficient age and maturity that his preferences were necessary to create an adequate record.

The court explained:

“The decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court.”

The court further noted:

“[T]he record reflects that the child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine what parental access would be in his best interests.”

WHAT THIS MEANS:

A court may need to interview a child privately when the child is mature enough, and the child’s preferences are important in deciding custody or parental access.

Dionis F. v. Daniela Z., — NYS3d — (2nd Dep’t 2024).

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Where disqualification is not required by statute, recusal is a matter of judicial discretion, and the judge is the sole arbiter when recusal is sought based on alleged impropriety rather than legal disqualification. However, judges must recuse where their impartiality might reasonably be questioned, and disqualifying bias ordinarily must stem from an extrajudicial source and result in an opinion on the merits based on that outside source. Here, the court held that the judge’s statements during the proceeding did not show bias or a predetermined outcome and that the later filing of an ethics complaint with the Attorney Grievance Committee after the case ended did not demonstrate bias or a due process violation.

The court explained:

“[A] judge’s decision on a recusal motion is one of discretion, and when recusal is sought based upon impropriety as distinguished from legal disqualification, the judge is the sole arbiter.”

The court further noted:

“When a judge receives information during an ongoing proceeding ‘indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct,’ the judge is required to ‘take appropriate action.”

WHAT THIS MEANS:

A judge need not recuse absent a basis to reasonably question impartiality, and a judge may wait until after a case concludes to report suspected attorney misconduct.

Kopko v. Kopko, — NYS3d — (3rd Dep’t 2024).

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Courts have considerable discretion to impute income when determining child support. Child support is based on a parent’s ability to provide for the child rather than solely on current claimed earnings. A court may disregard a parent’s own account of finances and impute income based on past income, earning capacity, educational background, employment history, or money received from friends and relatives. Here, the court upheld imputation of $100,000 in income to the father based on household expenses he paid, private school tuition, vehicle expenses for the mother, child care expenses, and his access to financial support from family.

The court explained:

“Courts have considerable discretion to impute income to a parent in fashioning a child support award.”

The court further noted:

“Courts may impute income based on a party’s employment history, future earning capacity, educational background, or money received from friends and relatives.”

WHAT THIS MEANS:

A court may impute income where the evidence shows greater resources or earning ability than the parent claims.

Fallin v. Haruna, — NYS3d — (3rd Dep’t 2024).

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Before imposing incarceration for willful violation of a child support order, the court must provide a fair hearing. Although no specific form of hearing is required, there must be proof presented, an opportunity to rebut it, and a reasonable opportunity for counsel to appear and present evidence and argument. Here, the court denied counsel an adjournment despite a lack of prior notice, prevented counsel from conferring with the respondent, and displayed a predetermined outcome and advocacy rather than neutrality. The appellate court therefore ordered a new hearing before a different judge.

The court explained:

“[A]t a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it and the court must provide counsel a reasonable opportunity to appear and present the respondent’s evidence and arguments.”

The court further noted:

“Given the preconceived opinion expressed and the lack of impartiality exhibited by the Family Court Judge before ordering that the respondent be incarcerated for six months, the matter must be remitted to Family Court for a new hearing and determination by a different judge.”

WHAT THIS MEANS:

A contempt or willfulness hearing must be conducted fairly and by a neutral judge before incarceration may be imposed.

Sullivan v. Taylor, — NYS3d — (4th Dep’t 2024).

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A challenge to a stipulation of settlement that is incorporated but not merged into a judgment of divorce must be brought by plenary action, not by motion. Where a party’s requested relief contradicts the express terms of the stipulation, the court properly denies such relief because modification can only be accomplished through a plenary action. By contrast, enforcement of such a stipulation may be pursued within the original divorce action. Here, the court also properly granted relief holding a party in civil contempt for failure to comply with obligations under the stipulation, including child support and pension provisions.

The court explained:

“A challenge to a stipulation of settlement which is incorporated but not merged into a judgment of divorce must be made by plenary action, and not by motion.”

WHAT THIS MEANS:

Modification of an incorporated but not merged stipulation requires a separate plenary lawsuit, while enforcement can be pursued within the original divorce case.

O’Malley v. O’Malley, — NYS3d — (2d Dep’t 2024).

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Tax liabilities are subject to equitable distribution principles. Where the evidence shows one party filed and paid their taxes separately. At the same time, if the other failed to file returns, the court may direct that the noncompliant party is solely responsible for outstanding taxes, including penalties and interest, and must indemnify the other party.

The court explained:

“The income tax liability of the parties is subject to equitable distribution.”

WHAT THIS MEANS:

Courts may assign responsibility for tax debt based on the parties’ conduct and financial circumstances as part of equitable distribution.

Osuagwu v. Osuagwu, — NYS3d — (2d Dep’t 2024).

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A party seeking civil contempt must prove by clear and convincing evidence that a lawful order contained an unequivocal mandate, that it was disobeyed with knowledge of its terms, and that the movant was prejudiced. Where a stipulation concerning payment of college expenses lacks a firm or definite obligation, and the movant fails to establish a specific amount owed or resulting prejudice, contempt is properly denied.

The court explained:

“The movant is required to prove by clear and convincing evidence that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect.”

The court further noted:

“Prejudice is shown where the party’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party.”

WHAT THIS MEANS:

Contempt will not lie where the obligation is not clearly defined or where the movant cannot show both a violation and resulting prejudice.

Perrone v. Perrone, — NYS3d — (2d Dep’t 2024).

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A party seeking maintenance, child support, or counsel fees must submit a sworn statement of net worth, along with a retainer agreement and documentation of legal services. However, the court may overlook defects or omissions where no substantial right is prejudiced. Materials submitted separately or in reply papers may be considered where the opposing party has an opportunity to respond.

The court explained:

“A party in a matrimonial action seeking an award of maintenance, child support, or counsel fees must include in his or her moving papers a sworn statement of net worth.”

The court further noted:

“CPLR 2001 permits a court…to disregard a party’s mistake, omission, defect or irregularity if a substantial right of a party is not prejudiced.”

WHAT THIS MEANS:

Required financial and fee documentation must be provided, but courts have discretion to accept late or corrected submissions if no prejudice results.

Zelenka v. Hertz, — NYS3d — (2d Dep’t 2024).

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Such stipulations are treated as contracts and interpreted according to standard contract principles. The parties’ intent is determined from the plain language of the agreement. Where the terms are unambiguous, interpretation is limited to the four corners of the document without resort to extrinsic evidence.

The court explained:

“A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation.”

The court further noted:

“Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument.”

WHAT THIS MEANS:

Clear stipulation terms will be enforced as written, without outside evidence or reinterpretation.

Barrezueta v. Barrezueta, — NYS3d — (2d Dep’t 2024).

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Temporary removal is authorized only where necessary to avoid imminent risk to the child’s life or health. The court must consider whether the risk can be mitigated by reasonable efforts short of removal and balance that risk against the potential harm caused by removal. Removal is proper where the record supports that the risk cannot be mitigated otherwise.

The court explained:

“Temporary removal is authorized only where the court finds it necessary ‘to avoid imminent risk to the child’s life or health.’”

The court further noted:

“The court must weigh…whether the imminent risk…can be mitigated by reasonable efforts to avoid removal.”

WHAT THIS MEANS:

A child may be removed from a parent only when there is an imminent, unmitigable risk and removal is in the child’s best interests.

In the Matter of Brycyn W., — NYS3d — (2d Dep’t 2024).

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Yes. In determining a maintenance obligation, a court is not bound by a party’s account of his or her finances, and may find a true or potential income higher than what the party claims where that account is not believable. Here, the record, including evidence of the parties’ expenses and lifestyle during the marriage, supported imputing an annual income of $221,000 to the plaintiff. The court also providently exercised its discretion in imputing an annual income of $35,000 to the defendant.

The court explained:

“ ‘[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.’ ”

WHAT THIS MEANS:

A court may look beyond a spouse’s claimed income and impute income based on the record where the claimed finances are not credible.

Albano v. Albano, — NYS3d — (2d Dep’t 2024).

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No. Where an action was commenced after January 23, 2016, the amended postdivorce maintenance provisions apply. Here, although the court incorrectly stated that the action was commenced before January 23, 2016, and considered the pre-amendment factors in deciding whether to award additional maintenance above the statutory cap, it nevertheless arrived at the correct presumptive guideline amount up to the cap and declined to award additional maintenance above it. Under those circumstances, the error was harmless, and reversal was not warranted.

The court explained:

“Where, as here, the payor’s income exceeds the statutory income cap of $184,000 . . . the court shall determine the guideline amount of postdivorce maintenance” under the statute and then determine whether to award additional maintenance above the cap by considering the statutory factors.

The court further noted:

“Under these circumstances, the error was harmless, and reversal is not warranted.”

WHAT THIS MEANS:

A mistaken reference to the pre-amendment maintenance factors will not require reversal where the trial court still reached the correct maintenance result under the governing statute.

Albano v. Albano, — NYS3d — (2d Dep’t 2024).

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Yes. A trial court has broad discretion in equitable distribution, including valuation of a business, but it must determine the parties’ respective rights in marital property and adequately articulate the basis for its distribution. Here, the court providently exercised its discretion in valuing the marital business at $600,000 based on its credibility findings and the report of a court-appointed forensic expert. However, the court failed to calculate the value of the defendant’s interest in the marital business, failed to calculate the value of the plaintiff’s interest in the marital residence, and failed to adequately articulate the basis for distributing those assets. The matter was therefore remitted for a new determination on the allocation of the marital business and marital residence.

The court explained:

“The equitable distribution statute mandates that the court ‘shall determine the respective rights of the parties in their separate and marital property.’ ”

The court further noted:

“The court failed to calculate the value of the defendant’s interest in the marital business, or the value of the plaintiff’s interest in the marital residence, and failed to adequately articulate the basis for its equitable distribution of those assets.”

WHAT THIS MEANS:

Even where a court properly values a marital asset, it must still clearly explain how it distributed the parties’ interests in that asset and related marital property.

Albano v. Albano, — NYS3d — (2d Dep’t 2024).

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No, not where the business is a tangible, income-producing asset rather than an intangible asset. Here, the court stated that, if the trial court intended to award the defendant a distributive share of the marital business in addition to maintenance, that would not constitute impermissible double counting because the plaintiff’s business was a tangible, income-producing asset.

The court explained:

“The plaintiff’s business constitutes a tangible, income-producing asset, rather than an intangible asset.”

WHAT THIS MEANS:

A court may award a distributive share of a business and maintenance without impermissible double counting where the business is treated as a tangible income-producing asset.

Albano v. Albano, — NYS3d — (2d Dep’t 2024).

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Yes. Domestic Relations Law § 236[B][8][a] gives courts general authority to order a party to purchase, maintain, or assign a life insurance policy on the life of either spouse. The statute expressly provides that life insurance may be used to secure maintenance and child support payments, so that dependent spouses and children are adequately protected.

The court explained:

“The plain language of the statute expressly provides that life insurance may be used as a means to secure maintenance and child support payments, so that dependent spouses and children will be adequately protected.”

WHAT THIS MEANS:

A court may direct life insurance coverage as security for maintenance and child support obligations.

Turco v. Turco, — NYS3d — (2d Dep’t 2024).

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No. Statements made by a child during a Lincoln hearing carry no independent evidentiary value and must remain confidential in order to protect the child in custody proceedings from openly choosing between parents or disclosing intimate details of the parent-child relationship. Such statements may serve to corroborate other evidence or help the court ascertain the child’s thoughts and feelings regarding a custodial arrangement, but those considerations must remain silent to preserve confidentiality.

The court explained:

“Statements made by a child during a Lincoln hearing carry no independent evidentiary value.”

The court further noted:

“Such statements must remain confidential to protect children in custody proceedings from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships.”

WHAT THIS MEANS:

A child’s Lincoln hearing statements are confidential and cannot independently prove facts, though they may inform the court’s assessment alongside other evidence.

Matter of C.M., — NYS3d — (3d Dep’t 2024).

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No, unless a prior order included a finding of extraordinary circumstances. While a change in circumstances is the threshold issue in custody modification proceedings between parents, where a parent seeks to regain custody from a non-parent, the parent is not required to prove a change in circumstances as a threshold matter unless extraordinary circumstances were found in a prior order. Here, the consent orders granting the aunt custody did not include any finding of extraordinary circumstances, so the mother had no obligation to demonstrate a change in circumstances.

The court explained:

“Where, as here, a parent seeks to regain custody from a non-parent, it is well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter.”

WHAT THIS MEANS:

When custody is with a non-parent, a parent may seek to regain custody without first showing changed circumstances unless an earlier order already found extraordinary circumstances.

Rebecca S. v. Ashley T., — NYS3d — (3d Dep’t 2024).

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If the stipulation fails to comply with the CSSA’s statutory language requirements, the child support obligation must be recalculated under the CSSA. Here, the parties’ so-ordered stipulation did not comply because it failed to recite that the parties were advised of the CSSA provisions and that the basic agreed-upon child support obligation would presumptively result in the correct amount of support. As a result, the monthly basic child support obligation had to be recalculated under the CSSA, including the parties’ pro-rated obligation for statutory add-on expenses.

The court explained:

“The parties’ so-ordered stipulation of settlement did not comply with the requirements of the CSSA because it failed to recite that the parties were advised of the provisions of the CSSA, and that the basic agreed-upon child support obligation would presumptively result in the correct amount of support to be awarded.”

WHAT THIS MEANS:

A child support agreement that does not include the required CSSA recitals cannot stand as written and must be recalculated under the statute.

Odom v. Williams, — NYS3d — (1st Dep’t 2024).

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A court may deny an adjournment where, after balancing the relevant factors, the record shows that the party had actual knowledge of the hearing date and failed to contact counsel or explain the failure to appear. Here, in light of the father’s actual knowledge of the continued hearing date and his failure to contact his attorney regarding his nonappearance, the Family Court providently exercised its discretion in denying counsel’s adjournment request.

The court explained:

“The granting of an adjournment rests in the sound discretion of the hearing court upon a balanced consideration of all relevant factors.”

WHAT THIS MEANS:

A court does not abuse its discretion by denying an adjournment where a party knew about the hearing but failed to appear and failed to notify counsel.

Jahmere W. v. Dennis W., — NYS3d — (2d Dep’t 2024).

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Yes. Although the court erred in relying on the child’s extended stay with the grandmother because that placement followed an order of protection and the mother then sought to regain custody, the cumulative effect of the other issues established extraordinary circumstances. The evidence showed that the mother was unfit and neglectful based on excessive corporal punishment, disregard of court orders requiring supervised access and barring contact between the child and her boyfriend, failure to recognize and facilitate the child’s need for counseling, failure to take interest in the child’s education, and allowing repeated exposure of the child to the person who murdered the child’s father. The court also properly determined that custody with the grandmother was in the child’s best interests.

The court explained:

“The court properly further held, however, that the cumulative effect of all issues other than the extended disruption of custody established that extraordinary circumstances exist.”

The court further noted:

“The evidence established that the mother was an unfit and neglectful parent.”

WHAT THIS MEANS:

Even if extended disruption of custody does not apply, extraordinary circumstances may still be found based on the cumulative evidence of unfitness, neglect, and disregard of court orders.

Gerow v. Samuel, — NYS3d — (4th Dep’t 2024).

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Yes. A parent adequately pleads a change in circumstances by alleging that the other parent repeatedly and consistently neglected to exercise the right to full parenting time and was unable to communicate effectively. Here, those allegations were sufficient to establish a change in circumstances warranting review of the custody order, and sole custody was granted to the mother.

The court explained:

“The mother adequately pleaded a change in circumstances by alleging that the father repeatedly and consistently neglected to exercise his right to full parenting time and that he was unable to communicate effectively with her.”

WHAT THIS MEANS:

A parent’s repeated failure to exercise parenting time can constitute a substantial change in circumstances supporting custody modification.

Williams v. Grau, — NYS3d — (4th Dep’t 2024).

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Yes. The Appellate Division held that developments occurring after the Supreme Court’s custody determination rendered the existing record insufficient to review whether the custody and parental access arrangement remained in the child’s best interests. Because the attorney for the youngest child brought those developments to the court’s attention, the matter was remitted for a reopened hearing and a new custody and parental access determination regarding that child.

The court explained:

“Changed circumstances may have particular significance in child custody matters and may render a record on appeal insufficient to review whether a child custody determination is still in the best interests of the child.”

The court further noted:

“The record is no longer sufficient to review whether the Supreme Court’s determination regarding custody and parental access is still in the youngest child’s best interests.”

WHAT THIS MEANS:

When significant developments affecting a child occur while a custody appeal is pending, an appellate court may direct a new hearing so that those developments can be considered before a new custody determination is made.

Haddad v. Sassoon, — NYS3d — (2d Dep’t 2025).

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Yes. Evidence that a parent failed to pay child support as ordered establishes a prima facie case of a willful violation and shifts the burden to the parent to present competent, credible evidence of an inability to pay. Here, the parent presented medical evidence showing that she was unable to work for at least three months following surgery and testified that she had no savings or assets and depended on her mother for support. Under these circumstances, the court determined that her failure to pay child support was not willful.

The court explained:

“Evidence of a failure to pay child support as ordered constitutes prima facie evidence of a willful violation of an order of support.”

The court further noted:

“Under the circumstances of this case, the appellant’s showing was sufficient to establish that her failure to pay child support was not willful.”

WHAT THIS MEANS:

A parent who fails to pay child support may rebut the presumption of willfulness by presenting competent and credible evidence demonstrating an inability to work and pay during the relevant period.

Dukofsky v. Dukofsky, — NYS3d — (2d Dep’t 2025).

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The custodial parent for child support purposes is generally the parent who has physical custody of the child for the majority of the time. If parents share parenting time equally, the parent with the greater income is deemed the noncustodial parent for purposes of calculating child support. In this case, however, the mother had primary physical custody because she had more parenting time under the governing order, and the evidence did not establish that the parties had moved to an equal parenting arrangement. As a result, the husband’s child support obligation was properly calculated under the Child Support Standards Act.

The court explained:

“There is no doubt that the custodial parent for purposes of child support is the parent who has physical custody of a child for the majority of the time and, if the parents share parenting time equally, the one with greater income is deemed to be the noncustodial parent for purposes of calculating child support.”

The court further noted:

“The record therefore supports the determination of Supreme Court that the wife is the primary physical custodian of the parties’ children.”

WHAT THIS MEANS:

When parenting time is truly equal, the higher-earning parent is treated as the noncustodial parent for child support purposes. Where one parent has more parenting time, that parent remains the custodial parent even if the other parent enjoys significant access.

Heber v. Heber, — NYS3d — (3d Dep’t 2025).

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Yes. The court held that it had authority to direct the pendente lite sale of the marital residence where title was held solely in the plaintiff’s name and the property was at risk of foreclosure. The court distinguished authority limiting pendente lite sales of property held by tenants by the entirety and found that sale was necessary to preserve the home’s equity, which appeared to be the largest marital asset. Net proceeds were to be held in escrow.

The court explained:

“Kahn’s holding was strictly limited to property owned by the parties as tenants by the entirety.”

The court further noted:

“The Court declines to let the largest asset of this marriage turn into waste, and the Court hereby orders the immediate sale of the Bethpage Residence so as to preserve the largest asset of this marriage pendente lite.”

WHAT THIS MEANS:

Where a marital residence is solely titled, at risk of foreclosure, and losing equity, the court may order a pendente lite sale to preserve the marital asset for equitable distribution.

FR v. AR, — NYS3d — (N.Y. Sup. Ct., Nassau Cty. J, Dane 2025).

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No. The court held that when a petitioner calls a respondent as an adverse witness, the petitioner’s counsel may ask leading questions. But if the respondent’s own attorney then questions that respondent, the attorney may not use leading questions merely because the questioning is labeled cross-examination. The court reasoned that one’s own client is biased in favor of counsel, and the purpose of leading questions on cross-examination is to test or discredit adverse testimony.

The court explained:

“As to the operative question presented here — whether respondent’s counsel may ask leading questions of their own client in the context of their testimony as a witness for the petitioner — the answer is no.”

The court further noted:

“When defendant’s counsel cross-examines her own client, leading questions are also forbidden.”

WHAT THIS MEANS:

When a party is called as an adverse witness by the other side, that party’s own attorney must question the client with non-leading questions, even if the examination is technically cross-examination.

Matter of Davin P., — NYS3d — (N.Y. Fam. Ct. 2025).

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No. The court held that the appellant was precluded from challenging the arbitration agreement after fully participating in the arbitration without objection. The court distinguished between a matrimonial agreement resolving contested issues and an agreement referring issues to arbitration for future resolution on the merits.

The court explained:

“Appellant is precluded from now challenging the arbitration agreement by having fully participated in the arbitration without objection.”

The court further noted:

“We recognize a distinction between a matrimonial agreement requiring proper acknowledgments under Domestic Relations Law § 236(B) for enforceably resolving contested issues, such as equitable distribution, maintenance, and child custody, and a substantively different agreement where the parties merely agree to refer such issues to arbitration for future resolution on the merits.”

WHAT THIS MEANS:

A spouse who fully participates in arbitration without objection may be barred from later claiming that the agreement to arbitrate was invalid.

Hussain v. Hussaini, — NYS3d — (2d Dep’t 2025).

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Yes. The court held that it was not bound by the father’s reported income and could impute income based upon his earning capacity. The father was a licensed, practicing attorney whose reported income was less than what a full-time minimum-wage worker would earn. The court rejected his testimony regarding the expenses of his solo practice as unrealistic and relied on his own testimony concerning his hourly rate and available work hours to calculate income for child support purposes.

The court explained:

“Supreme Court is not bound by a party’s representation about his or her income, and may impute income to a party based on the party’s earning capacity.”

The court further noted:

“The father was a licensed, practicing attorney, yet his reported income was less than he would earn working a full-time minimum-wage job.”

WHAT THIS MEANS:

A court may impute income for child support purposes when the evidence demonstrates that a parent’s actual earning capacity exceeds the income reported by that parent.

Ricky SS. v. Christine SS., — NYS3d — (3d Dep’t 2025).

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Yes. The court held that block billing is an accepted practice and may support an award of attorney’s fees where the billing records are sufficiently detailed. The court rejected the argument that task billing was required and distinguished authority criticizing block billing, where the records contained vague and nonspecific entries.

The court explained:

“Block billing is common practice among law firms.”

The court further noted:

“Neither court rule nor the contract called for task billing to be used.”

WHAT THIS MEANS:

Attorney’s fee requests may be supported by block-billed records where the entries are detailed and specific enough to permit meaningful review.

APC Ventures, Inc. v. Rechler, — NYS3d — (Sup. Ct. 2025).

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Yes. The court held that a sound and substantial basis in the record supported relocation to Florida. The court considered the relevant relocation factors, including each parent’s reasons, the child’s relationship with both parents, the effect on future contact with the father, and whether the move would enhance the child’s life. The evidence showed that the Florida home was safer, the child would continue receiving necessary school services, and the father would receive extended parenting time.

The court explained:

“In determining whether relocation is in the child’s best interest, courts must consider and give appropriate weight to all of the factors that may be relevant to the determination.”

The court further noted:

“The testimony and evidence submitted at the hearing further support the court’s finding that the move to Florida would improve the child’s overall quality of life.”

WHAT THIS MEANS:

Relocation may be granted where the record shows that the move improves the child’s overall circumstances and preserves a meaningful relationship with the noncustodial parent through suitable parenting time.

Jasmine M. v. Albert M., — NYS3d — (1st Dep’t 2025).

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No. Even where a parent shows a decrease in income of at least 15%, the parent must submit competent proof that the decrease occurred through no fault of the parent and that the parent diligently sought re-employment consistent with earning capacity. Here, the father’s vague and conclusory claim that he was compelled to separate from employment was insufficient, and the court properly denied modification without a hearing.

The court explained:

“Whether based upon an alleged change in circumstances or a purported decrease in income of at least 15%, the parent seeking a downward modification of a child support obligation must submit competent proof that the decrease in income occurred through no fault of the parent.”

The court further noted:

“The father’s vague and conclusory assertion that he was compelled to separate from employment was insufficient.”

WHAT THIS MEANS:

A payor seeking reduced child support must provide competent proof explaining the income loss and showing diligent efforts to obtain appropriate employment.

Harmelink v. Harmelink, — NYS3d — (2d Dep’t 2025).

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Yes. The court held that the plaintiff’s access to substantial family resources used to pay his litigation expenses was part of his financial circumstances under Domestic Relations Law § 237. The court found that ignoring those resources would undermine the purpose of interim counsel fees, which is to level the playing field and allow the less-monied spouse to litigate with adequate representation.

The court explained:

“When the plaintiff accepted this infusion of family wealth to fund his litigation against the defendant those funds became part of his ‘financial circumstances.’”

The court further noted:

“To hold otherwise would destroy the very purpose of DRL 237 and make a mockery of the statutory and appellate history.”

WHAT THIS MEANS:

A spouse cannot use family-funded litigation resources to gain an advantage while preventing the court from considering those same resources when awarding interim counsel fees to the less-monied spouse.

J.P. v. S.M., — NYS3d — (N.Y. Sup. Ct. 2025).

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Yes. The court held that one spouse’s transmission of a sexually transmitted infection to the other spouse constitutes a form of domestic violence. The wife testified that the infections resulted from the husband’s affairs, caused agonizing pain, required surgery after HPV led to cancerous cells, and required lifelong medication. The court found that the husband acted recklessly by engaging in unprotected intercourse with the wife after having an affair and awarded the wife 100% of the marital assets subject to equitable distribution.

The court explained:

“One spouse’s transmission of a sexually transmitted infection to the other spouse constitutes a form of domestic violence.”

The court further noted:

“The Court finds that the Husband acted reckless when he transmitted the HSV-1, HSV-2 and HPV viruses to the Wife.”

WHAT THIS MEANS:

A spouse’s reckless transmission of a sexually transmitted infection may be treated as domestic violence and considered in equitable distribution.

N.S. v. T.S., — NYS3d — (Sp Ct 2025).

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Yes. The court held that the wife remained the less-monied spouse despite her considerable assets, income, and support payments. The court found that she was not required to spend down a substantial portion of her assets to qualify for counsel fees, and that the fact that she had already paid the fees did not bar an interim award.

The court explained:

“There is no requirement that she spend down a substantial portion of her assets in order to qualify for an award of counsel fees.”

The court further noted:

“That the counsel fees in question were already incurred and paid for by the wife with her own money is of no moment.”

WHAT THIS MEANS:

A less-monied spouse may receive interim counsel fees even if that spouse has assets and has already paid counsel, where the award is necessary to address financial disparity and permit continued litigation.

Panos v. Panos, — NYS3d — (1st Dep’t 2025).

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Yes. The court held that extraordinary circumstances existed where the child had lived exclusively with the grandmother since age two, the mother was unable to care for the child due to mental illness, and the father had not been significantly involved since birth. The father’s contact was limited and sporadic, he never had overnight visitation, did not attend school or medical appointments, and did not pay child support.

The court explained:

“No one factor should be viewed in isolation, but rather the analysis must consider the cumulative effect of all issues present in a given case.”

The court further noted:

“Extraordinary circumstances arise from the fact that the now-six-year-old child has resided exclusively with the grandmother since she was two years old.”

WHAT THIS MEANS:

Extraordinary circumstances may be found from the combined effect of a child’s long-term placement with a nonparent, the parent’s limited involvement, and the child’s emotional attachment to the nonparent household.

Morris v. Smith, — NYS3d — (4th Dep’t 2025).

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Yes. The court held that although the parties’ email agreement did not satisfy the contractual requirements necessary to modify the child support provisions of their separation agreement formally, it constituted a valid waiver. The mother expressly agreed to the reduced child support amount and accepted those reduced payments for more than five years. As a result, she intentionally abandoned her right to collect child support at the higher rate during that period. The waiver remained effective until she withdrew it by filing her violation petition.

The court explained:

“There is a distinction between a modification agreement and a waiver.”

The court further noted:

“An agreement which does not satisfy the prerequisites of a legally binding modification agreement may nonetheless constitute a valid waiver, which cannot be withdrawn once the parties have performed in accordance with its terms.”

WHAT THIS MEANS:

A parent’s agreement to accept reduced child support payments, coupled with years of accepting those payments, may constitute a waiver of the right to enforce the higher support amount for that period, even where the parties did not execute a formal modification agreement. The waiver remains effective until it is withdrawn.

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No. The court held that Family Court lacked statutory authority to place a nonrespondent custodial parent under the supervision of ACS and the court, or to direct that parent to cooperate with ACS, where the child had not been removed from the parent’s home and the parent was not a respondent in the neglect proceeding. Because Family Court is a court of limited jurisdiction, it may exercise only those powers expressly granted by statute.

The case arose after ACS filed a neglect petition against the father based upon allegations of domestic violence committed against the mother in the child’s presence. The mother was not named as a respondent, and ACS acknowledged that the father did not reside in the home. Nevertheless, Family Court ordered that the child remain with the mother subject to ACS supervision and directed the mother to maintain contact with ACS, permit announced and unannounced home visits, and accept reasonable service referrals.

The court explained:

“The Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute.”

The court further noted:

“Similarly, the Family Court’s general parens patriae responsibility to do what is in the best interests of the children cannot create jurisdiction not provided by statute.”

Addressing Family Court Act § 1017, the court concluded that the statute applies only when a child has first been removed from a home and then released to a nonrespondent parent. Because no removal occurred here, the statute did not authorize the challenged directives.

WHAT THIS MEANS:

A nonrespondent custodial parent cannot be subjected to ACS supervision or ordered to cooperate with ACS under Family Court Act § 1017 when the child remains in that parent’s home and has not been removed. Family Court’s concern for a child’s welfare does not permit it to impose restrictions or obligations that are not expressly authorized by statute.

Matter of Sapphire W., — NYS3d — (2d Dep’t 2025).

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No. The court held that the separation agreement was enforceable and declined to rescind it. The plaintiff failed to establish that the agreement was the product of overreaching, unconscionability, fraud, mistake, or other grounds warranting vacatur. The record demonstrated that the plaintiff expressly waived maintenance, was advised regarding maintenance guidelines, and failed to raise a triable issue of fact showing that the agreement was unfair or inequitable.

The plaintiff argued that the agreement should be rescinded because the defendant did not engage in financial disclosure before it was executed. The court rejected that argument, noting that Domestic Relations Law § 236(B)(4) requires financial disclosure only when “alimony, maintenance or support is in issue.” The plaintiff had expressly stated that she was self-supporting and waived any claim for maintenance or support.

The plaintiff also argued that she was unrepresented and unaware of what she was relinquishing. The court found that claim contradicted by the record, which reflected that she was informed of the maintenance guideline obligation and that a Notice of Guideline Maintenance was included in the court file.

The court explained:

“Marital settlement agreements are judicially favored and are not to be easily set aside.”

The court further noted:

“Mere nondisclosure of financial circumstances is not sufficient to justify setting aside an agreement unless there is a showing that the nondisclosure resulted in an inequitable or unfair division of the marital property.”

The court concluded that even assuming there had been some nondisclosure regarding the value of the defendant’s retirement account, the agreement, viewed as a whole, was not inequitable and did not rise to the level of unconscionability.

WHAT THIS MEANS:

A separation agreement will not be set aside simply because one party later claims inadequate financial disclosure or regrets the terms of the agreement. Absent proof of overreaching, unconscionability, fraud, mistake, or an unfair division of property resulting from nondisclosure, courts will enforce marital settlement agreements that were fairly executed.

Elliott v. Elliott, — NYS3d — (4th Dep’t 2025).

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No. The court held that the petitioner failed to establish standing under the doctrine of equitable estoppel because the evidence did not clearly and convincingly demonstrate that the relationship rose to the level of parenthood or that maintaining the relationship was necessary to protect the child’s best interests.

Although the record showed that the petitioner had an ongoing relationship with the child during the child’s early years, the evidence did not establish that the petitioner functioned as a parent. The petitioner never lived with the child, never assumed financial responsibility for the child, did not consistently care for the child, and failed to demonstrate participation in major decisions regarding the child’s healthcare, education, welfare, or religion.

The court explained:

“The record failed to establish through clear and convincing evidence that the relationship between the child and petitioner rose to the level of parenthood and that it was in the child’s best interests for them to maintain contact.”

The court further noted:

“There was no evidence that petitioner consistently cared for the child or that the child looked upon petitioner as a parental figure.”

The court found particularly significant that the child did not recognize the petitioner as a parent. Instead, the child viewed the biological mother’s companion as her father and reported having a close, bonded relationship with him. The court also observed that the petitioner never took steps to formalize the relationship through measures such as signing the birth certificate or pursuing a second-parent adoption.

The court additionally expressed concern regarding the representation of the child, stating:

“Such delay should not be countenanced given, the importance of a child’s perspective in these matters.”

WHAT THIS MEANS:

A close or longstanding relationship with a child does not, by itself, establish standing under equitable estoppel. A petitioner must prove by clear and convincing evidence that the relationship functioned as a parental bond and that protecting that relationship is in the child’s best interests. Absent such proof, custody and visitation claims may be dismissed for lack of standing.

Apr. B. v. Relisha H., — NYS3d — (1st Dep’t 2025).

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No. The court held that a parent seeking a downward modification of child support must provide competent proof that the decrease in income occurred through no fault of the parent and that the parent diligently sought re-employment consistent with his or her earning capacity. This requirement applies whether the request is based upon a substantial change in circumstances or a decrease in income of at least fifteen percent.

The court explained that a reduction in income alone is not sufficient to warrant a modification. Rather, the inquiry focuses on whether the loss of income was involuntary and whether the parent made diligent efforts to obtain employment commensurate with his or her education, ability, and experience. The court further noted that support obligations are determined by a parent’s earning capacity and assets, not merely by current earnings.

The court stated:

“Whether based upon an alleged change in circumstances or a purported decrease in income of at least 15%, the parent seeking a downward modification of a child support obligation must submit competent proof that the decrease in income occurred through no fault of the parent and the parent has diligently sought re-employment commensurate with his or her earning capacity.”

The court further explained:

“Thus, the proper amount of support is determined not by the parent’s current economic situation, but by the parent’s assets and earning capacity.”

Although a hearing may be required when the parties’ submissions reveal genuine factual disputes, no hearing is necessary when the moving party fails to make a prima facie showing of entitlement to modification.

Here, the father failed to provide prima facie evidence that the alleged decrease in income occurred through no fault of his own or that he had made diligent efforts to secure employment commensurate with his earning capacity. As a result, the Family Court properly dismissed his petition without a hearing.

WHAT THIS MEANS:

A parent seeking a reduction in child support based on decreased income must present competent evidence that the income loss was involuntary and that diligent efforts were made to obtain comparable employment. Absent that showing, a court may deny the application without conducting a hearing.

Matthews v. Wei, — NYS3d — (2d Dep’t 2025).

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Yes. The court held that the parties’ marriage was valid despite their failure to obtain a marriage license because the marriage was solemnized by a rabbi in a traditional Jewish ceremony and the parties consented to the marriage.

The parties participated in a religious wedding ceremony officiated by a rabbi under a chuppah, obtained a ketubah, signed documents describing themselves as entering into a marriage binding under Jewish law, and authorized a Beth Din to resolve marital disputes. Although they never obtained a civil marriage license and one party argued that the marriage was not intended to be legally recognized under New York law, the court concluded that the marriage was valid.

The court explained:

“Domestic Relations Law § 12, provides, as relevant, that no particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman if the parties solemnly declare in the presence of a clergyman and at least one other witness that they take each other as spouses.”

The court further noted:

“As the parties’ marriage was solemnized by a rabbi with witnesses in a traditional Jewish ceremony, their failure to obtain a marriage license does not invalidate the marriage.”

Addressing the parties’ expressed intent that the marriage not be legally recognized under New York law, the court stated that this was not dispositive because “marriage is a contract between two consenting individuals,” but it is also “a special status governed by laws and the State and not determined by those entering the contract.”

The court rejected the contention that the parties lacked consent to marry. Although they signed a document stating that the marriage was not legally recognized under New York law, they also acknowledged in that same document that they were “entering into a marriage that is binding under Jewish law.” The court concluded that the consent requirement was satisfied.

The court also rejected the argument that the wife was barred from claiming the existence of a marriage because she had listed herself as unmarried on tax returns, concluding that the doctrine concerning positions taken on tax returns did not control the determination of marital status.

WHAT THIS MEANS:

A marriage solemnized by a clergyman may be valid under New York law even if the parties never obtained a marriage license. Where the parties consented to the marriage and participated in a qualifying religious ceremony, the absence of a license does not necessarily invalidate the marriage.

Spalter v. Spalter, — NYS3d — (1st Dep’t 2025).

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Yes. The court held that the parties’ inability to communicate and cooperate regarding their child constituted a sufficient change in circumstances to modify a joint custody arrangement. The court also upheld a significant restriction on the father’s parenting time where the evidence showed that continued therapeutic contact would be harmful to the child.

The record demonstrated that, during the six months preceding the mother’s petition, the parties’ relationship deteriorated to the point that there was no meaningful communication or cooperation concerning the child. The Family Court determined that the parties’ acrimony and the father’s inability to cooperate on matters involving the child rendered continued joint legal custody inappropriate.

The evidence further showed that the mother, as the child’s primary caretaker, made appropriate day-to-day decisions for the child, while the father appeared to be guided by his anger toward the mother, the child, and other family members rather than the child’s well-being. Based on the record, the court concluded that awarding sole legal custody to the mother was in the child’s best interests.

The court explained:

“Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature, civilized fashion.”

The court further noted:

“Evidence of a hostile relationship between the mother and the father indicating that joint decision-making is untenable is a change of circumstances.”

The court also upheld the modification of the father’s parenting time. Although parental access by a noncustodial parent is generally presumed to be in a child’s best interests, the court found that the deterioration of the father-child relationship and the child’s strong desire not to have parenting time with the father constituted a sufficient change in circumstances warranting modification.

The evidence showed that therapeutic parenting time was halted because of the father’s behavior and that the child was angry, upset, and crying following therapy sessions with him. The court further gave significant weight to the child’s wishes based upon her age and maturity.

WHAT THIS MEANS:

A substantial breakdown in communication and cooperation between parents can constitute a sufficient change in circumstances to justify modifying joint custody to sole custody. Where the evidence shows that continued parenting time would be harmful to the child, a court may significantly restrict a noncustodial parent’s contact with the child.

Freyer v. Macruari, — NYS3d — (2nd Dep’t 2025).

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Yes. The court held that the defendant was entitled to disclosure concerning any consideration the plaintiff received in connection with restricted stock units (RSUs).

The defendant sought information regarding the consideration received by the plaintiff in connection with RSUs. The appellate court concluded that the Supreme Court should have granted the request.

The court explained:

“Parties to a divorce action are entitled to liberal and broad discovery from one another.”

The court therefore determined that disclosure concerning any consideration received in connection with the RSUs should have been compelled.

WHAT THIS MEANS:

In matrimonial actions, courts permit broad financial discovery so that the parties may obtain information relevant to the identification, valuation, and distribution of assets.

Maritzen v. Maritzen, — NYS3d — (2nd Dep’t 2025).

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Yes. The court held that neither the county nor the foster care agency established entitlement to summary judgment dismissing negligence and negligent hiring, retention, and supervision claims arising from alleged sexual abuse of a foster child.

The plaintiff alleged that while residing in a residential foster care facility during the 1970s, she was repeatedly sexually abused by two counselors. She asserted that both the county, which had legal custody of her, and the foster care agency operating the facility knew or should have known of the abuse and failed to prevent it.

The court rejected the county’s argument that it owed no special duty to the plaintiff.

The court explained:

“An agency that assumes legal custody of a foster child, and which selects and supervises that child’s foster home, necessarily owes a duty to the child more than that owed the public generally.”

The court further noted:

“An entity to whom the custody of a child is entrusted has a duty to adequately supervise children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision.”

The court concluded that the county failed to establish, as a matter of law, that it lacked constructive notice of the alleged misconduct or that it adequately selected and supervised the plaintiff’s placement. Likewise, the foster care agency failed to establish that it lacked notice of the counselors’ alleged abusive propensities and conduct.

The court also held that the foster care agency failed to demonstrate that it did not knowingly or willfully fail to report suspected child abuse.

WHAT THIS MEANS:

A county that has legal custody of a foster child and a foster care agency responsible for the child’s placement and supervision may face negligence claims where questions remain regarding their knowledge of abuse, supervision of the child, or supervision of employees alleged to have committed abuse.

Brown v. Westchester County, — NYS3d — (2nd Dep’t 2025).

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Yes. The court held that domestic violence occurring in close proximity to a child may support a finding that the child was placed in actual or imminent danger of impairment, even without proof that the child was directly targeted or visibly affected.

The mother testified that the father choked her during incidents in 2021 and again in July 2023 while the child was present. During the July 2023 incident, the child was approximately ten feet away in a bedroom.

The court concluded that the mother’s testimony established that the child was exposed to domestic violence and faced actual or imminent danger of emotional or mental impairment.

The court explained:

“The fact that the domestic violence occurred in close proximity to the child, who was approximately 10 feet away in a bedroom during the July 2023 incident, permits an inference of impairment or imminent danger of impairment even in the absence of evidence that he was aware of it or emotionally affected by it.”

The court also found that the father’s pattern of verbally abusing the mother in the child’s presence placed the child at imminent risk of emotional and physical impairment.

The court further rejected a hearsay challenge to the child’s out-of-court statements telling the father to stop, finding that the statements were offered to show the child’s reaction to the father’s conduct rather than for their truth.

WHAT THIS MEANS:

A child need not be the direct victim of domestic violence for a neglect finding to be sustained. Domestic violence committed in proximity to a child may support an inference that the child faced actual or imminent impairment.

Matter of M.G., — NYS3d — (1st Dep’t 2025).

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Yes. The court upheld an award of sole legal custody to the father, permission to relocate the child to Texas, and an order providing for supervised visitation with the mother.

The record established that the mother repeatedly and falsely accused the father of sexually abusing the child, interfered with his ability to visit and maintain a relationship with the child, and actively prevented him from obtaining information from the child’s school. The court also found that the mother pressured the child to make allegations against the father and lacked insight into the effect of that conduct on the child.

The court determined that joint custody was inappropriate.

The court explained:

“The mother was palpably hostile toward the father, refused to make any joint decisions concerning the child, repeatedly and falsely accused him of sexually abusing the child, interfered with his ability to visit the child and maintain a relationship with her, and actively blocked him from obtaining any information from the child’s school.”

The court further found that the father was better equipped to meet the child’s educational, emotional, and medical needs and demonstrated a willingness to foster the child’s relationship with the mother despite the parties’ conflict.

Regarding relocation, the court concluded that the father’s desire to move to Texas was motivated by financial and career considerations rather than hostility toward the mother. The father had obtained suitable housing, secured a school for the child, and planned for family support with childcare.

The court also upheld the order providing for four annual supervised visits with the mother. The court relied on the mother’s interference with visitation, repeated unsubstantiated abuse allegations, failure to comply with court orders, and limited insight into how her conduct affected the child and the child’s relationship with the father.

The court stated:

“Supervised visitation does not constitute a deprivation of meaningful access to the child.”

WHAT THIS MEANS:

A court may award sole custody, permit relocation, and require supervised visitation where the evidence shows persistent interference with the child’s relationship with the other parent, false allegations, noncompliance with court orders, and an inability to recognize the impact of such conduct on the child.

Adekunle D.D. v. Luxury M.D., — NYS3d — (1st Dep’t 2025).

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No. The court held that the paternal grandmother lacked standing to bring a family offense proceeding on behalf of the child because she did not have legal custody or legal guardianship of the child.

The grandmother filed a family offense petition seeking an order of protection for the child against the child’s maternal uncle. The Family Court dismissed the petition for lack of standing.

The court explained that a child under the age of eighteen may appear only through the representatives authorized by law. Unless a guardian ad litem has been appointed, the child must appear through a guardian of property, a parent with legal custody, or another person or agency with legal custody.

The court explained:

“A person under the age of 18 may only appear by one of the representatives enumerated in CPLR 1201.”

The court further noted:

“Since the petitioner did not have legal custody or legal guardianship of the child, the petitioner did not have standing to bring this proceeding on behalf of the child.”

WHAT THIS MEANS:

A grandparent cannot commence a family offense proceeding on behalf of a child unless the grandparent has the legal authority required by statute, such as legal custody or guardianship.

Gliksman v. Burekhovich, — NYS3d — (2nd Dep’t 2025).

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Yes. The court upheld an order requiring the mother’s parenting time to be conducted virtually and under supervision, with the visits conditioned upon the children’s consent.

The evidence demonstrated that the mother lacked insight into both her own needs and the needs of the children. The record further showed that therapeutic supervised visits between the mother and the children had been unsuccessful.

Based on the totality of the circumstances, the Family Court determined that virtual supervised parenting time, conditioned on the children’s consent, was appropriate. The appellate court concluded that this determination had a sound and substantial basis in the record.

The court explained:

“The evidence demonstrated that the mother lacked insight into her own needs and the needs of the children and that therapeutic supervised visits between the mother and the children proved unsuccessful.”

The court further noted:

“Under the totality of the circumstances, the Family Court’s determination that the mother’s parental access be conducted virtually and supervised, and conditioning the virtual access on the children’s consent, is supported by a sound and substantial basis in the record.”

WHAT THIS MEANS:

Where the evidence demonstrates that prior therapeutic visitation efforts have failed and that a parent lacks insight into the children’s needs, a court may significantly restrict parenting time, including limiting contact to supervised virtual visits conditioned upon the children’s consent.

Reid v. Williams, — NYS3d — (2nd Dep’t 2025).

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No. The court rejected the argument that “community” should be equated with “locality” when determining a reasonable attorney’s fee. The court concluded that limiting fees to local geographic rates would improperly restrict litigants’ ability to retain counsel from other parts of New York and that attorneys practicing in specialized fields are entitled to have their services valued consistently throughout the state.

The court explained:

“Plaintiffs are essentially asking the Court to equate ‘community’ with ‘locality’. Such a definition is too limited.”

The court further noted:

“The attorneys who dedicate their careers to this demanding area of practice have the right to have their ‘stock in trade’ . . . assigned the same value wherever they may represent their clients within the state of New York.”

WHAT THIS MEANS:

In determining a reasonable attorney’s fee, a court is not necessarily limited to the prevailing rates in the county where the action is venued.

APC Ventures, Inc. v. Rechler, — NYS3d — (Sup. Ct. 2025).

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The proponent bears the burden of establishing that the will was executed in substantial compliance with EPTL § 3-2.1. A presumption of regularity attaches when the execution ceremony is supervised by a licensed attorney, and a presumption of due execution also arises when the will is accompanied by a self-proving affidavit. Here, the will was drafted by an attorney, executed in the presence of witnesses, and included both an attestation clause and a self-proving affidavit.

The court explained:

“A presumption of regularity attaches when a will execution ceremony is supervised by a licensed attorney.”

The court further noted:

“A presumption of due execution also arises when the will is accompanied by a self-executing affidavit.”

WHAT THIS MEANS:

An attorney-supervised execution ceremony and a self-proving affidavit may establish a prima facie showing that a will was duly executed.

In the Matter of the Probate Proceeding of Joyce J. Tigue, Deceased, — NYS3d — (N.Y. Sur. 2025).

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The proponent must show that the decedent understood the nature and extent of property, the natural objects of bounty, and the provisions of the will. A self-proving affidavit in which the witnesses attest that the testator was of sound mind creates a presumption of testamentary capacity and constitutes prima facie evidence of the facts stated therein. Here, the objectant failed to present evidence demonstrating a lack of testamentary capacity at the time the will was executed.

The court explained:

“A self-proving affidavit in which the witnesses attest that the testator was of sound mind creates a presumption of testamentary capacity.”

The court further noted:

“Once a prima facie showing has been made by proponent of decedent’s testamentary capacity, the burden shifts to the objectant to present evidence to demonstrate the presence of triable issues.”

WHAT THIS MEANS:

A self-proving affidavit may establish a prima facie case of testamentary capacity, shifting the burden to the objectant to produce contrary evidence.

In the Matter of the Probate Proceeding of Joyce J. Tigue, Deceased, — NYS3d — (N.Y. Sur. 2025).

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An objectant must demonstrate, by a preponderance of the evidence, motive, opportunity, and the actual exercise of influence that overpowered the testator’s free will. Although undue influence may be established through circumstantial evidence, allegations must be specific, detailed, and supported by evidence. Mere speculation or family disagreements are insufficient.

The court explained:

“An objectant must put forth more than speculation to establish undue influence.”

The court further noted:

“The Court cannot ascribe ill intent or assume that there was undue influence if the evidence is equally consistent with the assumption that the will expressed the decedent’s own voluntary intent.”

WHAT THIS MEANS:

Claims of undue influence must be supported by specific evidence showing that the testator’s free will was overcome; speculation and conclusory allegations are not enough.

In the Matter of the Probate Proceeding of Joyce J. Tigue, Deceased, — NYS3d — (N.Y. Sur. 2025).

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Generally, the burden of proving undue influence rests with the party asserting it. However, where a beneficiary stands in a confidential or fiduciary relationship with the decedent, the burden may shift to the beneficiary to establish by clear and convincing evidence that the transaction was not the product of undue influence. Here, the court found no evidence that the beneficiaries exercised controlling power over the decedent and therefore left the burden with the objectant.

The court explained:

“Generally, the burden of proving undue influence rests with the party asserting its existence.”

The court further noted:

“There is no evidence that the three Petitioners wielded any kind of controlling power over Decedent.”

WHAT THIS MEANS:

Absent proof of a confidential or fiduciary relationship giving a beneficiary controlling influence over the decedent, the burden of proving undue influence remains with the objectant.

In the Matter of the Probate Proceeding of Joyce J. Tigue, Deceased, — NYS3d — (N.Y. Sur. 2025).

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No. The court held that, under the circumstances presented, the Family Court improperly delegated its authority over parenting time by directing that the father’s supervised therapeutic parenting time occur only “as the parties and the child can agree.”

The court recognized that, where parents are cooperative and there is no dispute regarding parenting time, a court may permit parenting time to occur “as agreed by the parties.” However, where the record demonstrates hostility and an inability to cooperate, the court must establish a parenting time schedule rather than leave the issue to the parties.

The record reflected a lengthy history of conflict, including an order of protection against the father, continuing animosity between the parties, and the absence of any parenting time since the prior order was entered.

The court explained:

“In circumstances where there is no disagreement between the parties regarding the parental access schedule and the parties are able to cooperate with regard to same, a Court may award the noncustodial parent parental access with the child ‘as agreed by the parties’.”

The court further noted:

“A Court may not, however, delegate its authority to determine parental access to either a parent or a child.”

Because the parties were unable to cooperate, the court concluded that the Family Court should not have conditioned parenting time upon agreement by the parties and the child.

WHAT THIS MEANS:

A parenting time order may provide for visitation “as agreed by the parties” only where the parties are able to cooperate and there is no dispute concerning the schedule. A court may not delegate its responsibility to determine parenting time to either a parent or a child.

Leva v. Sokol, — NYS3d — (2nd Dep’t 2025).

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Yes. The court upheld an award of joint legal custody where, despite significant hostility between the parents and their families, the evidence demonstrated that the parties remained capable of communicating and cooperating regarding the child.

The Family Court acknowledged the hostility between the parties. Nevertheless, the evidence established that the parents were able to communicate sufficiently to complete weekly exchanges and arrange parenting time.

The court also recognized that the child had bonded with the father and that the father had become actively involved in the child’s education and other needs. At the same time, the mother had been primarily responsible for the child’s medical care and educational planning during the period when the father had been absent from the child’s life.

The court explained:

“Since joint legal custody ‘is an aspirational goal in every custody manner’ and the parties have demonstrated that they are ‘able to communicate with one another in a cooperative fashion,’ we conclude that a sound and substantial basis in the record supports Family Court’s determination that it was in the child’s best interests to award the parties joint legal custody.”

The court further determined that therapeutic parenting time with the mother was appropriate because it could help rebuild the relationship between the mother and the child.

The court noted:

“Family Court recognized that the child’s best interests lie in a healthy relationship with both parents, and appropriately considered that therapeutic parenting time would allow the mother and the child to possibly rebuild their relationship.”

WHAT THIS MEANS:

Hostility between parents does not automatically preclude joint legal custody. Where the evidence shows that the parties can still communicate and cooperate regarding the child, a court may determine that joint legal custody remains in the child’s best interests.

David JJ. v. Tara KK., — NYS3d — (3rd Dep’t 2025).

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Yes. The court upheld an order awarding the father joint legal custody and primary physical custody of the children after concluding that the determination was supported by the children’s best interests and a sound and substantial basis in the record.

After the parties divorced, the mother informed the father that she wanted to relocate to North Carolina to provide a better environment for the children. The father supported the plan, relocated his life to North Carolina, obtained employment there, and purchased a home. After the father completed the move, however, the mother informed him that she would not be relocating and remained in New York with the children.

The Family Court found both parents to be fit, loving, and capable of providing safe and supportive homes. However, the court placed significant weight on the father’s efforts to relocate in order to remain close to the children and the mother’s subsequent decision not to move.

The court explained:

“[T]he father, at the mother’s urging, had undertaken herculean efforts to uproot his life and move several states away in order to remain close with the children, only for the mother to change her mind and decide to stay in New York after the father had already relocated.”

The court further found that the mother’s explanation for abandoning the relocation plan was not credible and that contemporaneous communications contradicted her testimony.

The court also emphasized the parties’ differing approaches to fostering the children’s relationship with the other parent. It found that the mother failed to encourage the children’s relationship with the father after his relocation, while the father encouraged the children to remain close with the mother and communicated with her in a cooperative and practical manner.

The court noted:

“[T]he father encouraged the children to remain close with the mother, praised her parenting and was cooperative and practical in his communications with her.”

The evidence further established that the children had adjusted well to life in Greensboro, were taking advanced classes, participating in activities unavailable in their prior community, and making new friends.

WHAT THIS MEANS:

When determining custody and relocation issues, a court may consider a parent’s willingness to foster the children’s relationship with the other parent, the parties’ credibility regarding relocation plans, and the effect of the proposed move on the children’s opportunities and well-being. Here, those factors supported awarding the father primary physical custody.

Mark JJ. v. Stephanie JJ., — NYS3d — (3rd Dep’t 2025).

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Yes. The court held that the mother established by a fair preponderance of the evidence that the father committed the family offense of attempted assault in the third degree, notwithstanding the court’s decision not to issue a final order of protection.

The mother testified that during an argument the father shoved her to the ground and then lunged at her in a threatening manner. The court concluded that the surrounding circumstances demonstrated an intent to cause physical injury.

The court explained:

“The surrounding circumstances of the disagreement between the parties, the father shoving the mother and the father lunging at the mother demonstrate the father’s intent to cause physical injury to the mother.”

The father argued that the court’s decision not to issue an order of protection undermined the finding that a family offense occurred. The court rejected that argument.

The court further noted:

“That the court did not issue an order of protection, based upon the absence of any issues between the parties since the expiration of the temporary order, does not, as the father contends, negate that the mother met her burden of establishing that the father committed a family offense.”

The court also upheld the award of primary physical custody to the mother, finding that despite evidence that she had excluded the father from aspects of the child’s life, the child had lived with the mother since birth and she provided a stable home environment.

WHAT THIS MEANS:

A finding that a family offense occurred does not automatically require the issuance of a final order of protection. A court may determine that a family offense was proven while concluding that an order of protection is not warranted under the circumstances.

Holly P. v. George Q., — NYS3d — (3rd Dep’t 2025).

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Yes. The court held that the Support Magistrate properly included the father’s overtime earnings as income when determining child support.

The father’s overtime earnings appeared on his most recent tax return, and he failed to present evidence demonstrating that overtime opportunities would no longer be available or that his income would be limited to his base salary.

The court explained:

“His earned overtime was reported in his most recent tax return, and he presented no evidence that overtime would no longer be available or that he would be limited to his base salary.”

The father also argued that his extensive parenting time justified a reduction in his child support obligation. The court rejected that argument.

The court further noted:

“It is well settled that the noncustodial parent’s child support obligation is not reduced based upon the amount of time he or she actually spends with the children.”

WHAT THIS MEANS:

Overtime earnings may be included as income for child support purposes where the evidence shows that such earnings are available and regularly earned. Extensive parenting time, standing alone, does not reduce a noncustodial parent’s child support obligation.

Piraino v. Piraino, — NYS3d — (3rd Dep’t 2025).

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Yes. The court upheld an award of shared physical custody with sole legal custody to the father after finding that the mother repeatedly acted unilaterally regarding significant matters affecting the child.

The record established that both parents provided caring and supportive homes and supported the child’s educational development. However, the court found that the mother engaged in a continuing pattern of uncooperative conduct.

Among other things, the mother failed to share records with the father, unilaterally enrolled the child in extracurricular activities, changed the child’s physician without consulting the father, and repeatedly failed to inform him about medical appointments.

The court explained:

“The record supports the court’s finding that the mother continued to engage in a pattern of uncooperative and dismissive behavior with the father.”

The court further found that the father demonstrated a strong commitment to the child’s educational needs, including future educational planning related to the child’s autism diagnosis.

WHAT THIS MEANS:

A parent’s repeated failure to communicate and cooperate regarding significant decisions affecting a child may support an award of sole legal custody to the other parent, even where both parents otherwise provide appropriate homes and care.

Kelly AA. v. Christopher AA., — NYS3d — (3rd Dep’t 2025).

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No. The court held that the agency failed to establish by clear and convincing evidence that it exercised the diligent efforts required before parental rights could be terminated on the ground of permanent neglect.

The agency was required to demonstrate that it made affirmative, repeated, and meaningful efforts to encourage and strengthen the parent-child relationship and to assist the mother in overcoming the barriers to reunification.

The court explained:

“An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps.”

The evidence did not establish that the agency adequately assisted the mother, a single working parent, with obtaining childcare services, followed up regarding her therapy progress for an extended period, or developed a cooperative working relationship with her.

The court further noted:

“The evidence adduced at the fact-finding hearing failed to establish that the petitioner assisted the single, working mother with obtaining childcare services, followed up with her therapy progress for six months, or built a rapport with her in order to engage in cooperative dialogue.”

Because the agency failed to meet its threshold burden, the petition should have been dismissed as against the mother.

WHAT THIS MEANS:

Before parental rights may be terminated for permanent neglect, the agency must prove that it made diligent and meaningful efforts to help the parent address the problems preventing reunification. Failure to establish those efforts requires dismissal of the petition.

Matter of Syiah C. M., — NYS3d — (2nd Dep’t 2025).

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Yes. The court upheld an order imposing a filing restriction requiring the plaintiff to obtain approval before commencing future litigation.

The plaintiff had engaged in extensive litigation over many years based upon allegations of a broad conspiracy involving numerous individuals, government officials, attorneys, and judges. Multiple courts had previously imposed filing restrictions related to the same underlying allegations.

The court explained:

“Because her many actions and proceedings have rested upon the same allegations, several courts have imposed filing bars requiring plaintiff to obtain permission before commencing litigation regarding these underlying subjects.”

The plaintiff commenced another action against 137 defendants asserting numerous causes of action. The trial court dismissed the action and imposed an additional filing restriction.

On appeal, the plaintiff continued to advance the same conspiracy allegations and failed to address a dispositive basis for dismissal.

The court noted:

“Noting that no challenge has been made to the filing bar imposed by the subject order, we affirm.”

WHAT THIS MEANS:

A court may impose restrictions requiring a litigant to obtain permission before filing future actions where the litigant repeatedly files meritless litigation based upon the same allegations.

Uzamere v. Hochul, — NYS3d — (3rd Dep’t 2025).

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A court may award a parent unsupervised daytime visitation when the evidence does not establish that unsupervised access would be detrimental to the children. In this case, the Family Court determined that it was in the children’s best interests for the mother to have unsupervised daytime visitation with them in the community. The appellate court concluded that this determination had a sound and substantial basis in the record and upheld the order.

Supporting Explanation:

The court explained that supervised parental access is appropriate only when it has been established that unsupervised parental access would be detrimental to the child. Because the record supported the Family Court’s best interests determination, the appellate court declined to disturb it.

What This Means:

Whether visitation should be supervised depends on the evidence presented in the case. If the record supports a finding that unsupervised visitation is appropriate and in the children’s best interests, an appellate court may uphold that determination.

Douglas v. Polanco, – NYS2d – , 2025 WL

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Yes. The court explained that while parents may use reasonable physical force to maintain discipline or promote a child’s welfare, excessive corporal punishment constitutes neglect. Even a single incident of excessive corporal punishment may be sufficient to support a finding of neglect. In this case, the child’s out-of-court statements were corroborated by the testimony of the child’s school counselor, who personally observed the child’s injury, supporting the neglect finding.

Supporting Explanation:

The court stated that a child’s out-of-court statements relating to alleged neglect may serve as the basis for a neglect finding if they are corroborated. The corroboration requirement is flexible, and evidence supporting the reliability of the child’s statements may be sufficient. Here, the counselor’s observation of the child’s injury adequately corroborated the child’s statements, and together the evidence established neglect by a preponderance of the evidence.

What This Means:

A finding of neglect may be based on a single incident of excessive corporal punishment when the evidence, including properly corroborated out-of-court statements, establishes the claim by a preponderance of the evidence.

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No. The court explained that evidence of a parent’s mental illness alone is insufficient to support a finding of neglect. However, a neglect finding is proper when there is proof of a causal connection between the parent’s mental illness and a risk of harm to the child. The court also stated that proof of an ongoing mental illness and a failure to follow through with aftercare medication may support a neglect finding where that failure results in the parent’s inability to care for the child in the foreseeable future.

Supporting Explanation:

The court reasoned that evidence of mental illness may be considered as part of a neglect determination when the proof demonstrates that the parent’s condition creates an imminent risk of physical, mental, or emotional harm to the child. A causal connection between the condition and the potential harm must be established.

What This Means:

Mental illness by itself does not establish neglect. The court must also find that the condition creates the required risk of harm to the child based on the evidence presented.

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A court may determine a parent’s child support obligation based on the parent’s earning capacity rather than solely on the parent’s current financial situation. In this case, the court upheld the imputation of income to a father who held a valid real estate license, had previously worked in the real estate industry, and chose not to pursue comparable employment after his employer closed. The evidence also showed that he applied for positions for which he lacked the necessary qualifications and experience. Based on those circumstances, the court concluded that imputing annual income for purposes of calculating child support was appropriate.

The court explained that child support is based on a parent’s ability to provide support, not simply the parent’s present financial circumstances. A court is not required to accept a parent’s description of his finances and may instead consider past earnings and demonstrated earning potential. The evidence supported the determination that the father had the ability to earn income beyond what he claimed.

What This Means:

Parents cannot necessarily reduce their child support obligation by remaining unemployed or seeking work outside their qualifications. A court may look at earning capacity when calculating support.

Askinazi v. Askinazi, – NYS3d – , 2025 WL 2055300 (2nd Dep’t. 2025)

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In a custody dispute between a parent and a nonparent, a parent generally has the superior right to custody unless the nonparent establishes extraordinary circumstances. In this case, the appellate court concluded that the mother’s persistent neglect constituted extraordinary circumstances. The evidence showed that she continued to be unable to control her temper, words, and actions in front of the child, refused to comply with the supervising agency’s rules, and experienced a relatively recent relapse from sobriety that required hospitalization. The court found that these circumstances demonstrated persistent neglect and that the mother had failed to gain insight into the problems that led to the child’s removal.

The court explained that a parent’s superior right to custody may be overcome when extraordinary circumstances, including persistent neglect, are established. Based on the evidence presented, the court determined that the mother’s conduct satisfied that standard.

What This Means:

This decision illustrates that a parent’s superior right to custody may be overcome when the evidence establishes persistent neglect amounting to extraordinary circumstances.

Pierce v. Joyner, – NYS3d – , 2025 WL 2055294 (2nd Dep’t. 2025)

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A New York appellate court held that the Family Court abused its discretion by denying an incarcerated father’s request for an adjournment. The father had personally appeared at all prior proceedings, the request was his first, and it was not made to delay the case or because of a lack of diligence. The father’s incarceration prevented him from recently communicating with his attorney and recovering important evidence from a cell phone. The appellate court reversed the order and remitted the matter for a new hearing on the mother’s petition and the father’s cross-petition.

The court concluded that the father’s incarceration prevented him from fully participating in the preparation of his case. Because the request was not a delay tactic and resulted from circumstances beyond his control, the denial of the adjournment was an abuse of discretion.

What This Means:

This decision demonstrates that courts should consider whether incarceration has prevented a party from fairly participating in the proceeding when deciding whether to grant an adjournment.

Castro v. Rios-Osorno, – NYS3d – , 2025 WL 2092072 (4th Dep’t. 2025)

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A court may hold a party in civil contempt where the movant proves by clear and convincing evidence that a lawful court order containing a clear and unequivocal mandate was in effect, the opposing party disobeyed the order with knowledge of its terms, and the violation prejudiced the movant. In this case, the plaintiff established that the defendant failed to comply with a clear and unequivocal mandate contained in the court’s order. The defendant failed to refute that showing or establish an inability to comply. The appellate court also upheld the award of $10,000 in counsel fees incurred as a result of the contemptuous conduct.

The court explained that once the required elements of civil contempt are established, the burden shifts to the alleged contemnor to refute the showing or establish a defense, such as an inability to comply. Because the defendant failed to do so, the Supreme Court properly granted the plaintiff’s motion for civil contempt and properly awarded counsel fees.

What This Means:

A party who knowingly violates a clear court order may be held in civil contempt and may be required to pay the other party’s counsel fees resulting from the violation.

Tankleff v. Tankleff, – NYS3d – , 2025 WL 1572479 (2nd Dep’t. June 4, 2025)

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The appellate court upheld the Supreme Court’s temporary spousal maintenance award. The court explained that Domestic Relations Law § 236(B)(5–a)(c) provides the formula for determining the presumptively correct amount of temporary maintenance, and a court may deviate from that amount only if the presumptive award is unjust or inappropriate. Here, the defendant did not dispute that the award complied with the statutory formula and failed to establish that it was unjust or inappropriate or that exigent circumstances warranted modification. The court also upheld the denial of requests for moving costs and pendente lite awards for automobile expenses and unreimbursed medical expenses.

The court explained that appellate courts rarely modify temporary maintenance awards that comply with the statutory formula. Any perceived inequities are generally better addressed through a speedy trial where the parties’ financial circumstances can be fully explored.

What This Means:

Temporary spousal maintenance awards that follow the statutory formula generally will not be modified absent a showing that the award is unjust, inappropriate, or that exigent circumstances exist.

Tankleff v. Tankleff, – NYS3d – , 2025 WL 1572479 (2nd Dep’t. June 4, 2025)

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A noncustodial parent’s duty to support a child may be suspended if the parent establishes that the custodial parent wrongfully interfered with or withheld visitation rights through deliberate frustration or active interference. In this case, the Family Court dismissed the mother’s petition at the close of her proof. The appellate court reversed, concluding that the evidence presented was sufficient to withstand a motion to dismiss.

The court explained that the mother’s evidence included testimony that the father discouraged the younger child from having a relationship with the mother, ridiculed the mother in front of the children, interfered with communication and visitation, restricted the younger child’s access to personal belongings during visits, and frustrated efforts at reunification. Without deciding whether the mother’s claim would ultimately succeed, the appellate court held that the evidence, viewed under the proper legal standard, was sufficient to proceed.

What This Means:

This decision shows that evidence of alleged interference with a parent-child relationship may be sufficient to allow a claim regarding parental alienation and child support to proceed beyond a motion to dismiss.

Crystal NN. v. Joshua OO., – NYS3d – , 2025 WL 1583098 (3rd Dep’t. 2025)

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Yes. The appellate court held that when a nonparent seeks custody over a parent’s objection, the Family Court must first determine whether the nonparent has established extraordinary circumstances before considering the child’s best interests. In this case, the Family Court failed to determine whether the maternal grandmother had established extraordinary circumstances and instead appeared to rely on a prior consent order to bypass that requirement. Because the father was not a party to that consent order, the appellate court held that it did not constitute a judicial finding or admission of surrender, abandonment, unfitness, neglect, or other extraordinary circumstances. The matter was remitted for an expedited hearing.

The court explained that a parent has a superior right to custody absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period, or other extraordinary circumstances. The burden rests with the nonparent, and that issue must be resolved before the court addresses the child’s best interests.

What This Means:

Before a court considers what custody arrangement is in a child’s best interests, it must first determine whether a nonparent has established extraordinary circumstances that permit the custody dispute to proceed.

Tyler T. v. Brianna W., – NYS3d – , 2025 WL 1583103 (3rd Dep’t. 2025)

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A court may hold a party in civil contempt for violating clear provisions of a settlement agreement that have been incorporated into court orders. In this case, the plaintiff established by clear and convincing evidence that the defendant violated provisions prohibiting the parties from making disparaging remarks that would have a reasonable likelihood of prejudicing a child against the other parent, contacting the plaintiff’s business associates, and making public information obtained during discovery or filings in the divorce action. The plaintiff also established that these violations damaged his personal and professional reputation in the community and his relationship with his children. The appellate court upheld the contempt finding and the award of attorney’s fees.

The court concluded that the plaintiff proved the required elements of civil contempt by clear and convincing evidence, including that the violations caused prejudice. The court also upheld the award of attorney’s fees.

What This Means:

Civil contempt is not limited to violations involving financial obligations. A party who violates other clear court-ordered provisions of a settlement agreement may also be held in contempt and required to pay attorney’s fees.

Bellavia v. King, 239 A.D.3d 1243, 232 N.Y.S.3d 879 (4th Dep’t. 2025)

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The court denied a mother’s petition to change her child’s name because she failed to serve the non-petitioning parent as required by Civil Rights Law § 62(1). The mother stated that she did not know where the father lived, did not want him to know about the proposed name change, and submitted a prior order of protection that had expired. The court held that she failed to present evidence showing that the father could not be located with due diligence or that any other statutory exception applied. As a result, the court denied the petition without prejudice.

The court explained that Civil Rights Law § 62(1) requires service of a name change petition on both parents unless the non-petitioning parent cannot be located with due diligence. Although prior cases had relaxed the service requirement in certain circumstances involving safety concerns, the court concluded that the statute does not provide an exception allowing service to be dispensed with under the facts presented. The court also rejected the argument that the child’s best interests under Civil Rights Law § 63 could eliminate the service requirement, concluding that service on the non-petitioning parent is a condition precedent to the court’s consideration of the petition.

What This Means:

A parent seeking to change a child’s name generally must serve the other parent with the petition unless the statutory requirements for dispensing with notice are satisfied. Without proper service, the court cannot consider the request.

Application of Jane Doe, as Parent, For Leave to Change the Name of G.I.C.R. to I.R.M., – NYS3d – , 2025 WL 1601379 (N.Y. Civ. Ct. 2025)

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A court may find that a parent willfully violated a child support order when the parent fails to make the required payments. In this case, the Support Magistrate found that the father willfully violated the child support order and recommended that he be incarcerated for six months unless he paid specified purge amounts. The appellate court upheld that determination.

The court explained that evidence of a parent’s failure to pay child support as ordered constitutes prima facie evidence of a willful violation. The burden then shifts to the parent to present competent, credible evidence of an inability to make the required payments. The father failed to satisfy that burden because he did not present competent, credible evidence that he made reasonable efforts to obtain employment to meet his child support obligations. The court also upheld the sanction imposed, including the purge amounts.

What This Means:

A parent’s failure to pay child support may result in incarceration if the parent cannot demonstrate a credible inability to comply with the support order.

Hornedo v. Alfonzo, – NYS3d – , 2025 WL 1646463 (2nd Dep’t. 2025)

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Generally, no. The appellate court held that the Supreme Court should not have denied the mother’s request to relocate with the children without first conducting a hearing. The mother alleged that she had become engaged, intended to move with the children to her fiancé’s home in Rockland County, was experiencing difficult living arrangements, and that hostility between the parties had increased. The appellate court concluded that, if true, those allegations were sufficient to warrant reexamination of the existing custody arrangement and that the disputed factual issues required a hearing.

The court explained that custody determinations must be based on the child’s best interests after a full and fair hearing that allows the court to make an objective and independent evaluation of the circumstances. As a general rule, it is error to decide custody issues based on disputed allegations without a fully developed record.

What This Means:

When material facts relating to custody or relocation are disputed, a court generally must conduct a hearing before deciding whether to modify an existing custody arrangement.

Aboagye v. Aboagye, – NYS3d – , 2025 WL 1646451 (2nd Dep’t. 2025)

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Yes. The appellate court explained that when relocation is considered as part of an initial custody determination, the strict application of the relocation factors is not required. Instead, relocation is one factor among many the court considers in determining the child’s best interests. In this case, the Family Court awarded the father sole legal and physical custody and denied the mother’s request to relocate with the child to Georgia.

The court concluded that the Family Court’s determination was supported by the record. The evidence showed that the mother traveled with the child to Georgia during the beginning of the global pandemic without informing the father, causing him to learn of their whereabouts from the child. The court also found that the record supported the conclusion that the mother would not foster the child’s relationship with the father or encourage future contact if relocation were permitted. The court therefore upheld the award of sole legal and physical custody to the father, with parental access to the mother.

What This Means:

In an initial custody determination, relocation is one of several factors the court considers when deciding the child’s best interests, including each parent’s willingness to foster the child’s relationship with the other parent.

Herry v. Perry, – NYS3d – , 2025 WL 1646466 (2nd Dep’t. 2025)

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No. The appellate court held that a single isolated incident was insufficient to establish the family offense of harassment in the second degree. In this case, the father relied on one verbal dispute that occurred when the mother and her husband dropped off the child at the father’s home rather than at the police station where the father claimed exchanges were to occur. The court concluded that this single incident was insufficient to establish harassment.

The court explained that harassment in the second degree requires a course of conduct or repeated acts intended to harass, annoy, or alarm another person that serve no legitimate purpose. Because the father identified only one isolated incident, he failed to establish the family offense by a fair preponderance of the evidence.

What This Means:

A single isolated incident generally is not sufficient to establish the family offense of harassment in the second degree.

Martinez v. Toole, – NYS3d – , 2025 WL 1699456 (2nd Dep’t. 2025)

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No. The appellate court held that the trial court should not have denied the mother’s request to relocate with the children to Connecticut and establish a new parental access schedule without first conducting a hearing. The parties’ motion papers contained numerous disputes regarding facts material to the requested relief, making a hearing necessary.

The court also concluded that, under the circumstances of the case, an attorney for the children should have been appointed upon remittitur. The court explained that appointing an attorney for the child in a contested custody matter is the strongly preferred practice because the child has a real and vital interest in the outcome and a voice that should be heard.

What This Means:

When material facts relating to custody or relocation are disputed, a court generally should conduct a hearing, and appointing an attorney for the children is the strongly preferred practice in contested custody matters.

Stein v. Stein, – NYS3d – , 2025 WL 1699738 (2nd Dep’t. 2025)

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The appellate court stated that the parent who is better suited to make medical and educational decisions for the child is preferred as the custodian.

The court identified a parent’s ability to make medical and educational decisions for the child as a consideration in determining custody.

What This Means:

A court may consider which parent is better suited to make medical and educational decisions when determining custody.

Reggie P. v. Heather D., – NYS3d – , 2025 WL 1699725, at *2 (2nd Dep’t. 2025)

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The appellate court held that the Support Magistrate improperly imputed additional annual income to the mother because the record did not support a finding that her past income or demonstrated future earning capacity justified the imputation. The court also concluded that there was not a sufficient basis for calculating child support using combined parental income above the statutory cap.

The court explained that a determination to impute income must be supported by the record. It further explained that when combined parental income exceeds the statutory cap, the court must explain the basis for calculating child support above that amount and relate its reasoning to the statutory factors. In this case, the record showed that the child attended public school, there was no evidence of special needs or learning disabilities, and the father reported no childcare expenses. Under those circumstances, the appellate court concluded that the statutory percentage should have been applied only to the statutory cap, with no additional child support obligation based on income exceeding that amount.

What This Means:

A court must support an imputation of income with the record and explain its reasons for calculating child support based on income above the statutory cap.

Rahim v. Braden, – NYS3d – , 2025 WL 1699745 (2nd Dep’t. 2025)

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Yes. The appellate court held that the record supported modifying the custody orders to award the mother sole legal and residential custody. The evidence showed that the parties’ relationship had deteriorated to the point that they communicated only through the OurFamilyWizard application and no longer engaged in joint decision-making regarding the children.

The court explained that joint custody is encouraged primarily as a voluntary arrangement for relatively stable and cooperative parents. Evidence that parents can no longer cooperate on matters concerning their children constitutes a change in circumstances. The court further found that the mother was more involved in the children’s day-to-day needs, was more likely to promote stability and foster the children’s relationship with the father, and that the Family Court failed to give sufficient weight to the preferences expressed by the children, who were 12 and 9 years old.

What This Means:

When parents are no longer able to cooperate in making decisions for their children, joint custody may no longer be appropriate.

Smisek v. DeSantis, – NYS3d – , 2025 WL 1700058 (2nd Dep’t. 2025)

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No. The appellate court held that although a court may direct a parent to participate in counseling or treatment as part of a custody or parental access order, it may not require completion of counseling or treatment as a condition precedent to future parental access. The court modified the order by eliminating that condition.

The court explained that counseling or treatment may properly be included as a component of a parental access or custody order. However, completion of counseling or treatment cannot be made a prerequisite to future parental access or to reapplying for parental access rights.

What This Means:

A court may order counseling or treatment as part of a custody or visitation order, but it may not require completion of counseling before a parent may begin future visitation.

Cruz v. Williams, – NYS3d – , 2025 WL 1699454 (2nd Dep’t. 2025)

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The appellate court upheld the custody determination after concluding that it served the child’s best interests. The record showed that the plaintiff was the daughter’s primary caretaker, was more likely to provide the other parent with information regarding the daughter, and was more likely to foster the other parent’s relationship with the daughter. The court also gave great weight to the teenage daughter’s expressed wish to maintain the existing arrangement.

The court also held that the plaintiff was entitled to equitable distribution of the portion of the defendant’s accidental disability retirement pension that represented deferred compensation earned during the marriage. However, any portion of the disability pension constituting compensation for personal injuries remained separate property.

Finally, the court held that the defendant was not entitled to a credit against his child support obligation for Social Security benefits the children received due to his disability. The court explained that dependent Social Security benefits are intended to supplement existing resources rather than replace a parent’s obligation to support his or her children.

What This Means:

When deciding custody, courts consider the totality of the circumstances, including which parent has been the primary caretaker, is more likely to foster the child’s relationship with the other parent, and, when appropriate, the child’s wishes. The decision also confirms that the marital portion of a disability pension may be subject to equitable distribution and that Social Security dependent benefits do not reduce a parent’s child support obligation.

Maliah-Dupass v. Dupass, – NYS3d – , 2025 WL 1749221 (2nd Dep’t. 2025)

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Yes. The appellate court stated that where domestic violence is established by a preponderance of the evidence, the court must consider its effect on the best interests of the child.

The court explained that evidence of domestic violence is a required consideration in determining the child’s best interests when deciding custody.

What This Means:

When domestic violence is established by a preponderance of the evidence, the court must consider its effect on the child’s best interests in making a custody determination.

Bell v. Pierre, – NYS3d – , 2025 WL 1749232 (2nd Dep’t. 2025)

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The appellate court held that the Supreme Court should have appointed a new attorney for the two eldest children and ordered a neutral forensic evaluation. The court concluded that the attorney for the children failed to adequately ascertain the eldest child’s position consistent with the child’s capacities, failed to have a thorough knowledge of the child’s circumstances, and failed to determine whether a conflict of interest existed in representing both the eldest and middle child. The court also found that a neutral forensic evaluation was appropriate because of the parties’ conflicting contentions and the eldest child’s special needs.

The court explained that an attorney for the child must zealously advocate the child’s position, consult with and advise the child consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances. The court also explained that although forensic evaluations are not always necessary, they may be appropriate where sharp factual disputes affect the custody determination.

What This Means:

An attorney for the child must adequately determine and advocate the child’s position, and a court may order a neutral forensic evaluation when significant factual disputes affect the custody determination.

Sandiaes v. Sandiaes, – NYS3d – , 2025 WL 1749313 (2nd Dep’t. 2025)

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The appellate court held that the father’s failure to file sufficient proof of service of his objections on the mother prevented appellate review of those objections. Family Court Act § 439(e) requires a party filing objections to serve the opposing party and file proof of that service with the court.

The court explained that filing sufficient proof of service is a condition precedent to properly filing written objections. Because the father failed to satisfy that requirement, he waived appellate review of the merits of his objections.

What This Means:

A party challenging a child support order must comply with the statutory service requirements. Failing to file proper proof of service may result in the loss of appellate review.

Dillon v. Williams, – NYS3d – , 2025 WL 1749236 (2nd Dep’t. 2025)

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The appellate court upheld the termination of the mother’s parental rights after concluding that the foster care agency established permanent neglect by clear and convincing evidence. The agency demonstrated that it made diligent efforts to encourage and strengthen the parent-child relationship by developing a service plan, discussing the importance of complying with that plan, attempting home visits, and facilitating parental access. Despite those efforts, the mother only partially complied with her service plan and failed to plan for the child’s future.

The court also concluded that termination of parental rights was in the child’s best interests. The record showed that the child had bonded with her foster mother, had lived with her for a prolonged period, and that freeing the child for adoption would best serve the child’s interests.

What This Means:

Before parental rights may be terminated for permanent neglect, a foster care agency must demonstrate diligent efforts to strengthen the parent-child relationship and establish that the parent failed to maintain contact with the child or plan for the child’s future.

Matter of Annabelle W., – NYS3d – , 2025 WL 1749264 (2nd Dep’t. 2025)

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No. The appellate court held that the Family Court erred by awarding the parties sole medical and dental decision-making authority in alternating years. Although the court was permitted to divide decision-making authority after finding that the parties could continue to share joint legal custody but were unable to consistently agree on certain medical and dental issues, the appellate court concluded that alternating authority annually was arbitrary and created practical concerns.

The court explained that where parents cannot consistently agree regarding certain aspects of a child’s medical and dental care, a court may divide decision-making authority. However, the court concluded that decision-making authority should either remain shared or be awarded to one parent for each area of decision-making on a non-alternating basis. The matter was returned to the Family Court for that determination.

What This Means:

A court may divide medical and dental decision-making authority between parents, but awarding each parent sole authority on alternating years is not an appropriate method of resolving disagreements.

Wasicki v. Wilber, – NYS3d – , 2025 WL 1777298 (4th Dep’t. 2025)

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No. The appellate court upheld the award of joint legal custody after concluding that the parties were able to co-parent despite disagreements. However, the court modified the order because it improperly allowed a parenting coordinator to resolve disputes without identifying which parent would have final decision-making authority if the parties could not agree. The appellate court also modified the parenting schedule and transportation arrangements.

The court explained that a parenting coordinator does not have authority to resolve issues affecting a child’s best interests. Because the father had primary physical custody and had been responsible for the child’s educational and medical decisions for most of the child’s life, the appellate court granted him final decision-making authority if the parties remained unable to agree after consulting in good faith and meeting with the parenting coordinator. The court also concluded that the mother’s schedule of three partial weekends each month deprived both parents and the child of quality time together and that both parents should share responsibility for transporting the child for parenting time.

What This Means:

A court may award joint legal custody even when parents disagree on some issues, but it must identify which parent has final decision-making authority if agreement cannot be reached. A parenting coordinator cannot make those decisions, and parenting schedules should promote meaningful time with both parents.

Juan R.H.P. v. Wendy B.R., – NYS3d – , 2025 WL 1799503 (1st Dep’t. 2025)

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