Sara Stout Ashcraft, BridgeTower Media Newswires
ROCHESTER, NY — Two recent family law cases that came before New York’s Second Department Appellate Division point out that attorneys and courts sometimes need to be prompted to follow what has long been the law in the state.
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Modification of Custody: Silla v. Silla, 2021 NY Slip Op 07571 (2d Dept, 2021)
The parties were married and, in May 2018, entered into a Separation Agreement, which was incorporated into an Order later that year. Under the Agreement and Order, the parties had joint legal custody of their 8-year-old child, with the father having primary residency and the mother having the child every other weekend and one evening a week. In 2021, the mother filed to have a week-to-week 50/50 residency schedule, claiming that the father’s behavior was “embarrassing” to the mother and the child and that the child wanted the 50/50 schedule. Without a hearing, the trial court granted the mother’s motion for the 50/50 residency. The 2nd Department Appellate Court pointed out that: “In order to modify an existing custody arrangement there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. … A party seeking a change in [parental access] or custody is not automatically entitled to a hearing. … However, where facts material to the best interest analysis and the circumstances surrounding such facts remain in dispute, a hearing is required.” [citations and internal quotation marks omitted]
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Arbitration Provision: Matsui v. Matsui, 2021 Slip Op 06843 (2d Dept, 2021)
Plaintiff father is a citizen of the United States and Defendant wife an Israeli citizen. The parties were married in New York in 2014 and have two minor children, all living in New York as of 2019. An Action for Divorce was commenced in New York in 2019, and the parties executed a Stipulation of Settlement in September 2019, which contained a clause providing that custody and visitation disputes would be resolved by arbitration. The Stipulation also provided that the Defendant and the children could relocate to Israel. A Judgment of Divorce was entered in March 2021, incorporating but not merging the Stipulation of Settlement, and giving the Defendant physical custody of the children and Plaintiff “certain parental access.” The parties later disputed custody/residency issues and the trial court refused to exercise jurisdiction over these disputes, pointing out that the Stipulation of Settlement contained the clause to arbitrate custody disputes. The 2nd Department determined that the trial court had “erred in declining jurisdiction” over the custody issues, as the holds that “Disputes concerning child custody and visitation are not subject to arbitration as ‘the court’s role as parens patriae must not be usurped.’” Quoting Hirsch v. Hirsch, 4 AD3d 451 (2d Dept. 2004); Glauber v. Glauber, 192 AD2d (2nd Dept. 1993).
Continuing, the Appellate Court stated, “Moreover, since the Supreme Court has made previous custody determinations concerning the parties’ children, the court, prior to determining whether it has subject matter jurisdiction, must first determine whether the [D]efendant and the children have a significant connection with New York and whether there is substantial evidence in New York.” referencing, DRL §76-1[1][a]. The matter was remitted to the trial court to determine, “If … upon a complete examination of the evidence submitted, that it retains exclusive, continuing jurisdiction over the custody and parental access issues, it may exercise that jurisdiction, or it may decline to do so if it determines, upon consideration of the relevant statutory factors and after allowing the parties to be heard, that New York is an inconvenient forum,” referencing DRL §76-f[1][2].
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Sara Stout Ashcraft is a partner in Ashcraft Franklin & Young LLP. She concentrates her practice in the areas of matrimonial and family law.
