A CHILD'S RIGHT TO APPEAL A CUSTODY DETERMINATION

The child was a female around 16 years old when the Family Court made a decision on a change of custody.

Matter of Newton v McFarlane, 2019 NY Slip Op 04386, Decided on June 5, 2019, Appellate Division, Second Department, Scheinkman, P.J.:

"This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child's best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager."

Some highlights from the decision:

"We recognize that in Matter of Lawrence v Lawrence (151 AD3d 1879) and Matter of Kessler v Fancher (112 AD3d 1323), the Appellate Division, Fourth Department, dismissed appeals taken by the attorney for the child from orders dismissing custody modification petitions. In those cases, the parent whose petition was dismissed did not appeal. The Court reasoned that children could not compel their parents to litigate positions that the parents had elected to abandon. While we do not necessarily agree with the stated rationale, we do agree that it may be inappropriate to entertain litigation by a child for a change in custody where the parent to whom the custody of the child would be transferred is unwilling to accept the transfer. Likewise, it may be inappropriate to entertain litigation by a child to prevent a change in custody where the parent who has had custody is no longer opposed to the change. The present case does not present such a concern since the father, while not having filed and perfected his own appeal, has submitted a brief in which he urges reversal of the order from which the child has appealed. Further, since enforcement of the order has been stayed pending determination of this appeal, the father remains the custodial parent. Hence, this is not a circumstance where the child is attempting to compel a custody award in favor of an unwilling parent."

And this:

"Substantively, and more importantly, it cannot be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child [*4]should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents. As Chief Judge Charles D. Breitel stated in the landmark case of Matter of Bennett v Jeffreys (40 NY2d 543, 546): "a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of . . . constitutional magnitude." Among those rights is the child's right to have his or her best interests, and his or her position concerning those interests, given consideration by the court."

And note some of the issues raised by the non-custodial parent, as this was a teenager that did have some issues:

"Although the child had both academic and behavorial difficulties in school, these difficulties were of long-standing nature and were not due to any failings of the father. The father took appropriate steps to address the child's learning disabilities by working with her teacher and obtaining appropriate services for the child (see Matter of Cooper v Williams, 161 AD3d 1235, 1238 [father did not demonstrate a change in circumstances where the mother did not conceal one child's ADHD diagnosis and there was no evidence that the children's poor school performance was due to the custodial arrangement or failings of the mother]; Matter of Tiffany H.-C. v Martin B., 155 [*6]AD3d 501, 502 [father failed to demonstrate a change in circumstances based on poor school performance where he failed to obtain information about the children's education and where the mother took appropriate steps to address the children's learning disabilities by working with the school and obtaining appropriate services]). The father had sought private counseling for the child based on the school counselor's recommendation, but the services ended because the child missed sessions while she was visiting the mother. The suggestion that the mother might do a better job with these school issues than the father was belied by an episode in which the mother, during a telephone discussion with a family counselor, admittedly cursed at the counselor, ending the discussion with the mother. The counselor continued sessions with the father and the child.

In sum, while the child struggled academically, her difficulties were neither new nor related to the father's parenting; on the contrary, the evidence strongly suggested that the child's academic challenges were long-standing and that the father had developed numerous effective strategies for helping the child and motivating her. Thus, the child's academic struggles did not constitute a change in circumstances (see Matter of Cooper v Williams, 161 AD3d at 1238; Matter of Tiffany H.-C. v Martin B., 155 AD3d at 502).

The record establishes that the father responded appropriately to the discovery of the explicit photographs on the child's phone. When the father picked up the child after the visit during which the mother found the photos, he took away the child's phone and did not give it back to her for approximately five months. He also repeatedly discussed the seriousness of the issue with the child. He also discussed the incident with a private counselor, the school counselor, and the child's teachers. When the father returned the phone to the child, he did not enable Internet access or allow the child to password protect the phone. He also monitored the phone, and there have been no similar incidents. In contrast, although the mother was concerned that the child might again misuse Internet access, the mother did not take the phone away from the child, and had not tried to block Internet access or asked anyone else to do so. The mother was not even aware that parental control restrictions could be implemented, and did not know whether they were in place on the child's phone.

While the child's taking and/or distribution of explicit photos is a matter of concern given the way in which photos can spread on the Internet, the father's response to this incident was much more proactive. While this was a modern-age parenting challenge, there is nothing in the record to suggest that the father handled the situation inappropriately and certainly not to an extent that would constitute a change in circumstances warranting a review of custody (see Matter of Koch v Koch, 121 AD3d 1201, 1202 [father's ability, inter alia, to administer appropriate discipline supported award of custody to him]; Matter of Danielle TT. v Michael UU., 90 AD3d 1103, 1104 [court properly awarded custody to mother who, inter alia, was more likely to follow through with disciplining the children])."