In Mathie v. Mathie, 2009 NY Slip Op 6124 (2^nd Dep’t 2009), the parties divorced in 2005 after entering into a stipulation of settlement which provided for joint legal custody of their son, Ryan, with physical custody to the mother and visitation to the father. 

The parties’ stipulation stated that the mother was to reside in Nassau or Suffolk County for so long as the father resided in one of those counties.  The negotiated parenting schedule for the father consisted of alternate weekends, except to accommodate the father’s hunting schedule.  The father did not request time with Ryan during several major holidays, school vacations, or summer vacations. 

As a result of the father not regularly seeing or communicating with Ryan in 2005, Ryan’s schoolwork suffered and he became depressed.  Ryan’s therapist suggested that the father visit with Ryan during Monday evenings and Friday evenings when he did not have weekend visitation.  By the following summer, the father had cancelled most Monday visits with Ryan. 

In 2006, the mother remarried and informed the father that she wished to move with Ryan to New Jersey to live with her new husband.  The father objected and the mother instituted an action to allow her to relocate to New Jersey with their son.  While the father filed a counterclaim for an award of attorney’s fees, he did not seek custody of Ryan as an alternative to the mother’s relocation application.

On the appeal, the Court stated that when parties enter into a stipulation to resolve custody, those stipulations will not be modified unless there is a sufficient change in circumstances and modification is in the best interests of the child.  The Court further provided that the parent seeking the relocation must justify their interest as against the non-custodial parent’s fundamental right to frequent access or visitation. 

The factors that must be considered in this type of case include each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and non-custodial parents, the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements. 

In Mathie, the mother had been residing with Ryan in Long Island during the week to enable visitation by the father.  She resided in New Jersey with Ryan during her custodial weekends, and Ryan resided at the father’s home during the father’s custodial weekends.  As a result, Ryan had no sense of permanency and was living in three different homes. 

The Court determined that the mother had established that the Ryan’s best interest would be served by permitting the relocation, even though the relocation would result in more travel, approximately 60 miles to the father’s home.  Ryan would benefit from an extensive family support system in New Jersey, including the mother’s new husband and his children, the mother’s brother-in-law and his children, and the mother’s cousin and her children.  Additionally, the mother offered to be responsible for transportation of Ryan to and from the father’s house, causing the father no additional travel burden.

During the course of a custody modification proceeding in Lovitch v. Lovitch, (2d Dep’t 2009), the trial court modified joint custody such that the father was granted full custody of the children and the mother was granted visitation rights.  The mother appealed from the order, claiming impropriety by the children’s attorney.  The father’s attorney was a board member of the Children’s Rights Society, Inc. and the court-appointed attorney for the children was an attorney for the same organization. 

 The Appellate Division noted that the father’s attorney had disclosed in open court his relationship with the organization early on in the proceeding and the mother did not object at any time before or during the six-month long hearing to the court-appointed attorney for the children. 

The Court determined that the mother waived any claim of a conflict of interest as it applied to her in failing to object during the proceeding.  The Appellate Division also found that the Family Court properly exercised its discretion in denying the mother’s motion for a new trial, as the attorney for the children had properly advocated their position and nothing in the record indicated that the attorney’s involvement with the Children’s Rights Society interfered with the best interests of the children.  The mother failed to offer proof of actual impropriety or harm to the children’s interests and her request for a new trial was properly denied.

A New York Court may grant reasonable visitation to a grandparent if it is determined to be in the best interest of the child due to a preexisting relationship between the grandparent and the child.   There is a rebuttable presumption that grandparent visitation is not in the best interest of a child if the child’s parents agree that the grandparent should not be granted visitation rights.  Visitation rights for a grandparent that conflict with the right of custody or visitation of a birth parent who is not a party to the proceeding at hand may not be granted. 

 A petition for grandparent visitation may not be filed while the natural or adoptive parents are married, unless the parents are currently living separately, one of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse, one of the parents joins in the petition with the grandparents, the child is not residing with either parent, or the child has been adopted by a stepparent.

A biological parent has a superior right to custody over the rights of a non-parent.  The State may not deprive a parent of custody absent surrender, abandonment, persisting neglect, unfitness or other extraordinary circumstances.  The non-parent has the burden of proving extraordinary circumstances.  The existence of a prior consent order awarding custody to the non-parent is not enough to demonstrate extraordinary circumstances.           

In the case of In re Mercado, 2009 NY Slip Op 05718, a mother suffered from postpartum depression and checked herself into a mental health facility.  The child’s maternal grandmother filed a petition in Family Court for custody of the child.  A final order was granted on stipulation of the parties, awarding the grandmother sole custody of the child, with visitation to the mother at the grandmother’s discretion. 

Thereafter, the mother moved, became engaged and had another child.  The mother sought to modify the custody order, requesting sole custody of the child.   The Family Court dismissed the mother’s petition.

In this case, the Family Court failed to determine whether the grandmother had demonstrated extraordinary circumstances.  The Court incorrectly placed the burden on the mother to demonstrate a change in circumstances since the final order was issued.  The matter was remanded to Family Court for further proceedings.

In the past thirty years, three Hague Children’s Conventions have taken place to address the protection of children in at-risk border disputes.   The first convention, entitled “Convention on the Civil Aspects of International Child Abduction”, was held in 1980 with the goal of enabling participating countries to cooperate in returning children who have been wrongly removed from their residences to another country.  The second convention, entitled “Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”, was held in 1993 with the goal of regulating international adoptions.  Finally, the third convention, entitled “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children”, was held in 1996 with the goal of tying the previous conventions together with rules pertaining to parental responsibilities and public measures of protection for children.

The intent of the Hague Conventions was to address issues pertaining to children caught in the turmoil of broken relationships, disputes over custody and relocation, and international parental abduction.  The conventions have issued uniform rules to participating countries to address which country’s authority takes precedence in border disputes involving children.  For instance, a judge may issue a temporary protective order to return a child to the country from which he or she was taken.  The Hague Convention rules make such orders enforceable in both the country from which the child was taken and the country into which the child was taken, so long as both countries involved have implemented the uniform rules.  The rules also set forth procedures to ensure prompt return of children to their home country.  The rules avoid conflicting decisions between countries, giving the primary decision-making responsibility to the authorities of the country in which the child has his or her habitual residence, which generally means where the child had been living and was settled.

 A Hague Convention application should be handled by an attorney familiar with the procedures and evidentiary requirements necessary to bring about a quick return of the child to its home country.  Such an application should be made as soon as possible after a child is taken across an international border, away from his or her habitual residence, without the consent of a parent with rights of custody; the longer the child is in the new environment across an international border, the less likely a court will be willing to return the child to its habitual residence.  Acting quickly also demonstrates that the parent from whom the child was taken did not agree to the child’s removal from its habitual residence.

 Normally, the child must be promptly returned to his or her habitual residence unless the return would cause a grave risk of harm to the child, such as physical or psychological harm or would otherwise place the child in an intolerable situation.  An example of such a situation is when a parent has fled a country with the child to escape severe physical abuse inflicted by his or her spouse.

 A parent whose child has been wrongfully removed or wrongfully retained across an international border should contact the U.S. State Department’s Office of Children’s Issues, which is responsible for administration of the Hague Convention rules in the United States.  Additionally, if the parent already has a custody order in place, the parent should seek enforcement in a court of appropriate jurisdiction.  If no custody order has been issued, the parent should petition for custody of the child.  The parent may also request the assistance of state and federal prosecutors to institute criminal proceedings against the parent who removed the child across an international border without consent.

In certain circumstances, Courts may determine that grandparents have rights to visitation or even custody of their grandchildren.   The standard applied to grandparent visitation cases is whether the grandparent visitation or custody is in the best interests of the grandchild.  In the case of E.S v. P.D., 8 N.Y.3d 150 (2007), a man asked his mother-in-law to move into the marital residence to care for her terminally ill daughter and grandchild.  After her daughter died, the man asked the grandmother to stay in the home and continue to care for the grandchild. 

After approximately 3 ½ years, the relationship between the man and his mother-in-law became strained regarding certain issues surrounding care of the grandchild.  He then demanded that the grandmother move out of the marital residence and forbade her from having contact with the grandchild.  The grandmother petitioned for visitation with the grandchild and the Court of Appeals determined that visitation between the grandmother and grandchild was in the child’s best interests, given the history of caregiving and the close relationship between grandmother and grandchild.

In a recent New York Court of Appeals decision, the Court held that, unless the parties to an agreement express otherwise, or the Court expressly states in a judgment or order, the custodial parent has sole decision-making authority with respect to practically all aspects of the child’s upbringing.  The Court rejected the father’s argument that the right of a non-custodial parent to participate in educational decisions for his or her children is implied. 

While the Court found that a non-custodial parent is not prevented from requesting data about his or her child’s education, the authority to control educational decisions lies with the custodial parent

The facts of the case, Fuentes v. Board of Education of the City of New York, 12 N.Y.3d 309 (2009), were as follows:  The father and mother divorced in 1996 and the mother received exclusive custody of the parties’ three children.   One of the parties’ children is legally blind and received special education services from a New York City school.  The father decided that the services received by his son were inadequate and sought a review of the services by the education department. 

After the educational department determined that the father lacked standing to make educational decisions for his son, the father commenced a federal action, claming that he was denied a right conferred by the Individuals with Disabilities Education Act.  The Federal District Court dismissed the father’s action for lack of standing.  On appeal, the Federal Circuit court held that New York law, which governs the matter, was unclear.  That Court then asked the New York Court of Appeals to resolve the issue on a certified question:  whether the non-custodial parent retains decision making authority on educational matters for his or her child when the custodial parent is granted exclusive custody of the child and the divorce decree and/or custody order are silent as to the right to control educational decisions.   The New York Court of Appeals held that the non custodial parent did not retain that decision making authority.