NY CHILD CUSTODY - SUBSTANCE USE/ABUSE IS A MAJOR FACTOR

MATTER OF GLENN X. v. CASSIE X., 2026 NY Slip Op 51273 - NY: Family Court 2026:

"Petitioner Glenn X. (hereinafter "the father") and Respondent Cassie X. (hereinafter "the mother") are the parents of the subject children E.X. (date of birth: XX/XX/13), A.X. (date of birth: XX/XX/15), and O.X. (date of birth: XX/XX/16) (hereinafter "the children"). This is a proceeding pursuant to Family Court Act Article 6. This action commenced with the father's filing of a modification petition on June 6, 2025.

A Fact-Finding Hearing was conducted by the Court on June 12, 2026. The mother was represented by Attorney Emerson Mitchell, Esq., the father was represented by Attorney Robert Lalonde, Esq., and the children were represented by Attorney Olivia Molineux, Esq., of Citizens Concerned for Children, Inc. The Court heard testimony from the parties and received exhibits into evidence. The Court has reviewed the final summations filed by counsel. On June 15, 2026, a Lincoln Hearing was held with A.X., O.X., and the AFC^[1].

The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and notified the parties and the attorneys of the results of these searches.

PROCEDURAL HISTORY

On April 15, 2025, a Custody and Visitation Order on Consent was entered following negotiations by counsel for the parties and the Attorney for the Children pursuant to previously filed petitions. Under the order, the mother and father were granted joint legal custody with the mother to have final decision-making authority. The mother was granted placement of the children, with the father to have parenting time on Sundays from 10:00 a.m. until 6:00 p.m., plus additional time as agreed by the parties. The father was also granted regular telephone contact with the children. Further, it was ordered that, "the father shall continue with treatment as recommended by CARS [Cayuga Addiction Recovery Services] and shall continue to abstain from using alcohol and shall continue to abstain from using all other illegal substances."

On June 6, 2025, less than two months after entry of the Custody and Visitation Order on Consent, the father filed a modification petition seeking an increase in his set weekly parenting time to Saturdays at 5:00 p.m. until Mondays at 5:00 p.m. He alleged that the parties were "unable to negotiate a workable visitation schedule that allows for additional time" with him.

On June 9, 2025, the mother filed a modification petition by order to show cause seeking permission to take the children on vacation later that month. The mother alleged that, despite her offer for make-up visits, the father would not agree to the vacation because it would fall over two of his Sunday visits. The Court granted the mother's requested relief on the papers and ordered that she may (but is not required to) provide the father with make-up parenting time. On July 18, 2025, the mother filed a second modification petition seeking sole legal custody, suspension of the father's visitation, and an order requiring the father to be reevaluated for substance abuse.

FINDINGS OF FACT

The Court found the mother to be completely credible. She has done an exceptional job raising three bright, kind, and sociable children. She has gone out of her way to support the children's relationship with their father despite the difficult circumstances created by his ongoing substance abuse.

The father is an untreated addict, and the Court did not find him to be credible. The only believable testimony he gave was his admissions to currently using alcohol and marijuana, facts which he would be hard pressed to deny given his drug testing records (Respondent's Exhibit H), photographs taken by the mother (Respondent's Exhibits A and B), and text conversations with the mother wherein he declares that complying with court orders and testing for alcohol and drugs is "bullshit" and a "fucking joke" (Respondent's Exhibits E and F). However, the Court did not believe the father's characterization of how much alcohol and marijuana he uses and finds that he minimizes his substance abuse and the issues created thereby. Attorney Mitchell astutely summarized the evidence at trial as follows:

". . . the father continues to find himself in a cyclical use of substances. The father has shown periods of sobriety, followed by increasing alcohol and cannabis use which is then followed by binging and escalation to cocaine. All of which culminate in crisis calls to the mother or some other individual. Calls that are filled with admissions, apologies and pleas for help. Once the cycle begins again, the father then reports that he is just drinking occasionally and using cannabis and he can handle it. This was his phase during the hearing. It has been the history for this family each time it comes back to court.

As can be seen from Exhibits A through H, the father has prioritized his use of substances over securing a stable and safe schedule of contact for the children. As can be seen from Exhibits E, F, and H, the father was openly defiant and refused to follow the court order, despite knowing that adherence to the order would be the only way of regaining any normal schedule of contact with the children.

Clearly the father is unable to prioritize the children's well-being above his own addictions and thus is not an appropriate joint custodian for the children." Attorney Mitchell Summation.

The parties met in AA in 2010. The father confided in the mother that smoking marijuana always leads him back to drinking alcohol. The father was sober from 2010 until 2014. In 2014, the father relapsed. The relapse was so alarming that the mother cancelled their wedding. The father regained his sobriety in 2014, and the parties eventually married. The father remained sober until 2018 when the mother noticed a change in the father's behavior. She confronted him, and he admitted that he had been sneaking around and smoking marijuana. She took this seriously given his admission that smoking marijuana leads him to drink alcohol. He told her he would stop. Another relapse occurred in 2019; again, the father admitted to sneaking around and smoking marijuana. This time, the father said that he would not stop. The mother told the father the marriage was over and contacted a divorce attorney. Although he briefly stopped smoking when she first contacted the divorce attorney, he resumed using marijuana by April or May of 2020. The mother confronted the father after he took the children on an outing, and he admitted to smoking marijuana while driving the children in his truck. The children were only seven, five, and three years old at the time. The mother testified, "from then on, our separation was happening."

As predicted by the mother, the father began drinking alcohol again by the fall of 2020. The father admitted on the witness stand that he was "struggling" with alcohol during this time, that he was drinking four to five days per week, and that he was consuming "more than reasonable." The parties continued to live together until the mother and children moved out of the home in January of 2021. During this time, the mother observed the father drinking, and the father also told the mother about his drinking. In late 2020 or early 2021, the father drove to downtown Ithaca to plow snow, a job he performs in the winter. The father told the mother that he was so drunk when he arrived downtown that he napped in a parking lot he had been hired to plow. The father also told the mother that while drinking at home alone, he passed out in front of the wood stove with the door open and that he was lucky the house did not burn down.

The father later admitted to the mother that he was also using cocaine during this time. The father had become aggressive, and he had thrown a phone through their living room window, punched a hole in one of their walls, and threw a dog leash through one of their walls. Angry that the mother would not allow him to drive with the children in tow, the father called the mother a "cunt" loudly at a softball practice where the children and paternal grandmother were present.

In February of 2021, the father was charged with Driving While Intoxicated after crashing his truck and refusing to submit to a breathalyzer. He also kicked a hole in the wall of the sheriff's office during the arrest. The mother learned of the crash a day or two later. The father told the mother he was going to stop drinking but not stop smoking marijuana. At one point, he called her crying because he "couldn't smoke enough pot to get high enough." She asked him to get some help. He got in touch with a sponsor and stopped drinking for a time. He ultimately pleaded guilty to misdemeanor Driving While Intoxicated and was sentenced to a conditional discharge. As part of his sentence, he was required to install and utilize an ignition interlock device in his vehicle for one year. The father abstained from alcohol until 2023.

In 2023, the parties were sharing equal placement. The mother learned the father may be drinking again and confronted him. He denied it. Then the father called the mother and admitted he was drinking again. The mother asked the father not to drink while the children were in his care. Two days later, the children observed the father drinking and reported this to the mother. The mother filed a petition in family court soon thereafter.

The father was engaged in substance abuse treatment at Cayuga Addiction Recovery Services (CARS) from fall of 2024 through spring of 2025, including weekly appointments, testing, and group sessions. He claimed that he attended treatment at this time not because he was struggling with alcohol but because he was "basically mandated by the court." He claimed that he was successfully discharged from CARS in the spring of 2025. On April 15, 2025, a Custody and Visitation Order on Consent was entered, requiring the father to "continue with treatment as recommended by CARS," "continue to abstain from using alcohol," and "continue to abstain from using all other illegal substances." The father admits that he began drinking again soon after the order was entered. While he at first testified that since he had agreed to the consent order he could also "unagree" to it, upon further questioning he admitted that by drinking alcohol he was in violation of the consent order which was not only an agreement between the parties but also an order of the Court.

In June and July of 2025, the parties filed their current petitions with the Court. The father admitted on cross-examination at trial that when the mother requested permission to take the children on a vacation that would stretch across two of his Sunday visits, she in fact offered the father numerous make-up visit dates and times, and, because he would not agree, she was ultimately forced to bring an order to show cause to receive permission from the Court for her vacation with the children.

At an appearance with all parties and counsel on August 4, 2025, the Court issued an Interim Order which was later entered on August 6, 2025. Under the Interim Order, the mother was granted temporary sole legal custody and continued primary placement. The father's parenting time was to take place "at a time and place agreed upon by the parties taking into account the children's wishes." The father was forbidden from driving with the children in the car, was ordered to comply with random weekly substance screens through the Family Treatment Court office, and was required to use a blood alcohol content (BAC) tracking device eight hours prior to each visit (as well as every eight hours thereafter for overnight visits).

Taking all the credible testimony and exhibits together, the father did not have any parenting time with the children from August 6, 2025, until October 17, 2025, because the father refused to use the BACtrack device. (Respondent's Exhibits D and E). In a text message to the mother on August 6, 2025, the father declared, "I'm done with the court. I'm not doing any of this bullshit. The kids can see me ANYTIME they want. I'm not going anywhere, but I'm not playing these fucking games anymore." (Respondent's Exhibit E). After sending this text, the father showed up unannounced to the mother's home and waited for the mother and children to return. The children were excited to see him. However, their excitement soon turned to despair when the father told the children that he won't be seeing them anymore because he wasn't going to play the "games" that the judge and the mother were making him play. At the same time, he told the children they were welcome at his house any time. The children were confused and crying. No one understood why he was saying goodbye. This stunt "emotionally wrecked" the children, and the mother was left to deal with the aftermath.

In October 2025, the father resumed his use of the BACtrack device. On October 18, 2025, by the good graces and with the agreement of the mother, his parenting time resumed, including some overnight visits. (Respondent's Exhibit D). However, in November of 2025, the father again stopped using the BACtrack device and, as a result, did not have any parenting time with the children from November 24, 2025, through February 5, 2026. (Respondent's Exhibit D). On December 6, 2025, the father texted the mother, "Are you aware of the court date getting moved? . . . I don't know what your plan is, but I'm not doing what I've been doing with the testing and the BACTrack [sic] until June. In fact I'm done with it again. This is a fucking joke." (Respondent's Exhibit F). Respondent's H shows that from August 15, 2025, through June 8, 2026, the father had 35 missed drug tests, eight failed drug tests due to the detection of THC, one missed drug test due to reporting too late, and zero passed drug tests. At trial, he rationalized that the random weekly substance testing was merely ordered as a condition of his visitation and that it was not ordered "regardless." Clearly, the father does not view time with his children as his priority.

The father currently participates in a pool league and drinks alcohol while doing so. He testified that he consumes up to three drinks at a time, two or three days per week. He admitted that he drives himself home after drinking. The father maintains that he has had "no issues" with alcohol since his discharge from CARS and resumption of drinking, stating he has a "good understanding" of his "whole history." The father claims he has not used alcohol around the children since 2024. The father denies that he has struggled with any other substances besides alcohol. He estimates that he currently uses marijuana four to five days per week, "occasionally" on the same days that he uses alcohol. He admits that he uses marijuana while the children are in his care, after they are asleep. Aside from his admissions to using alcohol and marijuana, the Court did not find the father to be a credible and accurate reporter of his substance use. He minimizes the amount of alcohol and marijuana he consumes as well as the resultant impact on his life and relationships.

CONCLUSIONS OF LAW

A "party seeking to modify an existing custodial arrangement" must "demonstrate, as a threshold, that `there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children' (Matter of Tyrel v. Tyrel, 132 AD3d 1026, 1026 [2015] [internal quotation marks and citations omitted]; see Matter of Gerber v. Gerber, 133 AD3d 1133, 1135 [2015])." Matter of Harrell v. Fox, 137 AD3d 1352, 1354 (3rd Dept. 2016). If the requisite change of circumstances burden has been met, the petitioner must then demonstrate that the "best interests of the child[ren] would be served by modification of that order (Matter of David ZZ. v. Suzanne A., 152 AD3d 880, 881, 58 N.Y.S.3d 711 [2017] [internal quotation marks and citations omitted]; accord Matter of Heather U. v. Janice V., 160 AD3d 1149, 1150, 74 N.Y.S.3d 410 [2018])." Beers v. Beers, 163 AD3d 1197, 1198 (3rd Dept. 2018).

The father has failed to meet his burden of showing a significant change in circumstances since issuance of the April 2025 Custody and Visitation Order on Consent as the father's claim that the parties were "unable to negotiate a workable visitation schedule that allows for additional time" with him was unsupported by the evidence. At all times, the mother has gone above and beyond to offer ample additional parenting time to the father. Any difficulties (such as refusing to accept make-up time to allow for the mother's vacation with the children) were the fault of the father alone.

The mother, however, has met her burden of showing a significant change in circumstances since issuance of the April 2025 order because there was uncontroverted proof (including the father's own admissions at trial) that he began drinking alcohol again soon after the order was entered. This is a significant change in circumstances because the father was ordered to continue to abstain from alcohol in the April 2025 order.

Turning now to whether it would be in the best interests of the children to modify the prior order, "[a]ny court in considering questions of child custody must make every effort to determine `what is for the best interest of the child, and what will best promote [his or her] welfare and happiness' [internal citations omitted]." Eschbach v. Eschbach, 56 NY2d 167, 171 (NY 1982). "In determining the best interests of a child, a court must consider various factors, including `the parents' ability to provide a stable home environment for the child, the child's wishes, the parents' past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent' [internal citations omitted]." Herrera v. Pena-Herrera, 146 AD3d 1034, 1035 (3rd Dept. 2017).

Further, the courts have held that where there is an "acrimonious relationship" and poor communication between the parties, joint custody is inappropriate. See Shearer v. Spisak, 90 AD3d 1346, 1347 (3rd Dept. 2011); Tylaeya C. v. Karl S., 187 AD3d 402 (1st Dept. 2020). In such cases, it is appropriate to award sole custody to the parent who has been the "primary caregiver" to the [children] and to the parent who has "demonstrated a willingness to foster a relationship between the [children] and [the other parent] . . ." Keen v. Stephens, 114 AD3d 1029, 1031 (3rd Dept. 2014); Tylaeya C. v. Karl S., 187 AD3d 402 (1st Dept. 2020). In considering a party's willingness to promote a relationship between the children and the other parent, the court may take into account the party's poor communication with the other parent, "disparaging treatment of the [other parent] as reflected in . . . text messages," and "failure to take responsibility for his [or her] actions." Cameron ZZ. V. Ashton B., 183 AD3d 1076 (3rd Dept. 2020).

Based upon all of the evidence, the Court must grant sole legal custody and continued primary placement to the mother. The mother has always been the primary caregiver to the children, and she is the only parent that has provided a safe, stable, and healthy home environment for them. She has continued to foster the children's relationship with the father despite the very difficult circumstances created by the father's untreated addictions. She even agreed to allow the father to resume visits after two periods of the father not seeing the children for months due to his refusal to use the BACtrack device. Although the mother works very hard to communicate with the father and schedule parenting time for him, the Court finds that there is an "acrimonious relationship" between them such that joint custody is no longer inappropriate. An example of this is the father's refusal to accept the offered make-up time and allow the mother to take the children on vacation, something which would have been in the children's best interests. Another example is the shockingly cruel, manipulative, and alienating behavior the father engaged in on August 6, 2025, when he told the children goodbye because he was no longer going to play the "games" the judge and the mother were making him play. He was willing to cause serious emotional damage to his children to either gain a leg up on the mother or hide the true problem: his addictions. The father alone has created this acrimony through his failure to take responsibility for his own actions. He wants to blame the mother for his situation, but he has only himself to blame.

The Court is aware that the mother is advocating for the father to have alternate weekends, however the Court agrees with the schedule proposed by the AFC (which is the same schedule as in the April 2025 order): a set schedule of Sundays from 10:00 a.m. until 6:00 p.m. plus additional parenting time, including overnights, as the parties can agree taking into consideration the wishes and best interests of the children. The current schedule works well because the mother is so accommodating and supportive of the children's time with the father. The father has not done anything to warrant an increase in his set parenting time. If anything, his actions warrant a decrease in his set parenting time.

Further, the Court has serious concerns about the safety of the children while in the father's care. There is ample support in the record for supervised visits for the father, and that is where the father is headed next if he is found to be in violation of this order. It is imperative that the father utilize the BACtrack device to ensure he is not consuming alcohol while the children are in his care.

The father's modification petition is DENIED. The mother's modification petition is GRANTED. It is hereby:

ORDERED, that the mother shall have sole legal custody and placement of the subject children; and it is further

ORDERED, that the father shall have parenting time on Sundays from 10:00 a.m. until 6:00 p.m.; and it is further

ORDERED, that the father may have additional parenting time, including overnight parenting time, as agreed upon by the parties and under conditions as agreed upon by the parties, taking into consideration the wishes and best interests of the subject children; and it is further

ORDERED, that the father shall have an additional mid-week parenting time with the subject child E.X. at least once a week at dates and times to be agreed upon by the parties and under conditions as agreed upon by the parties and taking into consideration the wishes and best interests of E.X.; and it is further

ORDERED, that the aforementioned parenting time schedule may be modified as agreed upon by the parties, including for purposes such as reasonable vacation time, camps or extracurricular activities; and it is further

ORDERED, that the father shall abstain from using alcohol and any other illegal or mind-altering substances (including marijuana/cannabis and cocaine) during his parenting time as well as during the twelve hours prior to any parenting time; and it is further

ORDERED, that the father may attend all school events and activities parents normally attend, provided he is not under the influence of alcohol or any other substances; and it is further

ORDERED, that at the initial exchange of the children, the mother will review the BACtrack and also assess the father's condition for signs of alcohol or other substance use. The mother shall cancel the visit if she observes signs of use; and it is further

ORDERED, the father shall use the BACtrack device and provide reports to the mother both (1) at the onset of every visit; and (2) every eight hours while the children are in his care. The father shall maintain his subscription to the service; and it is further

ORDERED, that should the father fail to provide those reports or should the report show alcohol use, the mother shall retrieve the children and end the visit early; and it is further

ORDERED, that should the mother need to cancel a visit for purposes such as vacation time or other reasons, the mother shall offer the father a choice of alternative make-up visits; and it is further

ORDERED, that in regulating their own behavior, the parties shall observe and follow the following "rights of a child whose parents are separated (adapted from the Parent's Handbook of the New York State Parent Education and Awareness Program — 2016):

1. The right not to be asked to "choose sides" between their parents.

2. The right not to be told any details of the legal proceedings going on between their parents.

3. The right not to be told "bad things" about the other parent's personality or character.

4. The right to privacy when talking to the other parent on the telephone.

5. The right not to be interrogated by one parent about the other parent.

6. The right not to be asked to carry messages between parents.

7. The right not to be asked by one parent to tell the other parent untruths.

8. The right not to be used as a confidant regarding adult matters.

9. The right to express feelings, whatever those feelings may be.

10. The right to choose not to express certain feelings.

11. The right to be protected from parental "warfare."

12. The right not to be made to feel guilty for loving both parents.

[1] E.X. was present outside of the courtroom and met this Judge but did not wish to participate in the hearing."

NY CHILD SUPPORT - PENDENTE LITE PAYMENTS SUSPENDED DUE TO FAMILY ESTRANGEMENT ISSUES

Rosenfeld v. Rosenfeld, 2026 NY Slip Op 4048 - NY: Appellate Div., 1st Dept. 2026:

"Defendant appeals from an order of the Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance.

Since at least 1971, the Court of Appeals and this Court have approved orders suspending child support in appropriate but rare cases. The doctrine permitting suspension of a child support obligation based on constructive emancipation (see Matter of Roe v. Doe, 29 NY2d 188, 192-193 [1971]) or unjustifiable interference with visitation rights (see Feuer v. Feuer, 50 AD2d 772, 773 [1st Dept 1975]; Callender v. Callender, 37 AD2d 360, 362 [1st Dept 1971]) developed through case law. The development of that doctrine pre-dates the enactment of Domestic Relations Law § 241 in 1978 (L 1978, ch 232), which permits suspension of maintenance based on visitation interference. In doing so, Domestic Relations Law § 241 codified a principle as to maintenance that had already been developed in case law with regard to child support.^[1]

A parent has a legal duty to support their child until the child is 21, regardless of the existence of a child support order (Domestic Relations Law § 240[1-b][b][2]; Family Ct Act § 413[1][a]; see also Roe, 29 NY2d at 192-193 ["It has always been, and remains a matter of fundamental policy within this State, that a (parent) of a minor child is chargeable with the discipline and support of that child"]). Even after the enactment of Domestic Relations Law § 241, courts have determined whether to suspend a parent's child support obligation based solely on judge-made law (see Usack v. Usack, 17 AD3d 736 [3d Dept 2005]; Matter of Smith v. Bombard, 294 AD2d 673 [2d Dept 2002], lv denied 98 NY2d 609 [2002]).

In this case, in an order dated December 27, 2021, issued more than two years before the order on appeal, Supreme Court decided custody and the mother's motion for pendente lite support. Based on clear and convincing evidence presented at the 35-day custody trial, the court determined that the mother had deliberately and actively alienated the child from the father in "one of the most clear-cut and disturbing examples of parental alienation that this court has observed through thousands of custody cases over many years." Accordingly, the court reasonably determined that this is one of the unfortunate and rare situations where suspension of the noncustodial parent's child support obligation was warranted. Specifically, the court decided the pendente lite motion by directing the father to pay 90% of the child's unreimbursed medical and mental health expenses and otherwise suspended the father's child support obligation until the child's visitation with the father was "meaningfully resumed" or "there is otherwise good cause to resume the support" (see Rodman v. Friedman, 112 AD3d 537, 537 [1st Dept 2013]).

The custody order contained detailed provisions intended to assist the parties in repairing the relationship between the father and child as a component of the parenting time plan, including requiring the mother to work with a parenting coach through December 2023, attend family therapy, and complete intake with the Building Family Resilience program. The court's pendente lite order was also based on the father's statement that he loves the child and would "continue to pay for 100% of her private school expenses, multiple extra-curricular activities, day camps and medical care without interruption . . . ., with or without a court order," and the mother's concession that he had done so. In reaching its decision, the court also considered that the mother has considerable assets of her own, including both separate property and equitable distribution received pursuant to the parties' prenuptial agreement. Critically, the mother did not appeal from the 2021 order.

The order now appealed from denied the mother's subsequent motion for an award of pendente lite child support based on her claim that she had complied with the 2021 order and that the father now had meaningful parenting time with the child. The motion court noted that this was essentially a motion to modify the earlier pendente lite award. However, the mother failed to present any facts establishing either good cause or that visitation had meaningfully resumed, as required by the prior order, from which she never appealed. Nor did she demonstrate exigent circumstances requiring modification of the earlier pendente lite award (see Anonymous v. Anonymous, 167 AD3d 527, 527 [1st Dept 2018]).^[2]

Indeed, the mother's submissions either admitted or did not deny the following assertions in the father's affidavit: (1) as of June 22, 2023, the mother still had not bothered to read the court's December 27, 2021 order, which set out specific directives for the mother to follow to help repair the relationship between the father and the parties' child; (2) in early 2022, she fired the parenting coach, even though the December 27, 2021 order had directed her to work with a parenting coach through December 2023; (3) she continued to deny to the family therapist that she had alienated the child, despite the court's finding that she had and its direction that she participate in family therapy; (4) she canceled the father's parenting time for the child's spring break in 2022; (5) she told the child she could attend a friend's bar mitzvah instead of going on one of two scheduled four-day visits with the father during summer 2022; (6) she took the child to California when the child was scheduled to spend her birthday with the father in April 2023; (7) approximately one month after she made the instant motion, despite the fact that the parties have joint legal custody, she unilaterally extended the child's sleepaway camp stay and canceled the father's summer parenting time; and (8) as of August 2023, the father and child had only one of their scheduled alternate weekend overnight visits since 2022.

Accordingly, we disagree with the dissent that the record does not support a finding that the mother continued to interfere with the father's relationship and parenting time with the child.^[3] Indeed, some of the mother's actions directly violated the 2021 order. Therefore, the court appropriately exercised its discretion in determining that the record before it did not demonstrate that visitation between the child and the father had "meaningfully resumed."

As the motion court found, the child's reasonable and appropriate needs are being met (see Whitaker v. Case, 122 AD3d 1015, 1020 [3d Dept 2014] [suspension of child support appropriate, pending custodial parent's demonstration of good faith effort to assist in therapeutic process needed to reunite noncustodial parent with children, where there was no evidence of risk to the children becoming public charges]; Usack, 17 AD3d at 739-740 [same]). It is undisputed that the mother and child continue to reside in a 1,500 square foot luxury apartment with views of Central Park and that the father continues to pay all of the child's expenses for private school, extracurricular activities and tutoring, in addition to 90% of her unreimbursed medical and mental health expenses.

The dissent relies primarily on Domestic Relations Law § 241. However, neither the order now on appeal, nor the 2021 decision suspending the father's obligation to pay child support because the mother had "unequivocally been alienating the child" relies on, or even mentions, Domestic Relations Law § 241.^[4]

Finally, the best remedy for a perceived inequity in a pendente lite award is a speedy trial. Accordingly, we need not modify a pendente lite award where, as here, the party seeking modification has not shown exigent circumstances (Anonymous, 167 AD3d at 527).

Under these circumstances, Supreme Court did not improvidently exercise its discretion in determining that the mother's efforts to comply with the terms of the 2021 order did not result in the child having regular visitation with the father as set forth in that order, and that there was not otherwise good cause to modify the 2021 order as to pendente lite child support.

Accordingly, the order of the Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance, should be affirmed, without costs.

All concur except Michael, J. who dissents in an opinion.

MICHAEL, J. (Dissenting).

The court failed to provide a sufficient basis to deny defendant mother's request for pendente lite child support and therefore, I respectfully dissent. The court did not make the requisite finding pursuant to Domestic Relations Law § 241 and relevant case law that the mother has continued to deliberately frustrate or actively interfere with plaintiff father's visitation rights to support denial of the mother's motion for temporary child support or to consider whether there is otherwise good cause to grant support. Accordingly, I would reverse and remand for further proceedings as discussed below.

I.

Domestic Relations Law § 241 provides in pertinent part:

When it appears to the satisfaction of the court that a custodial parent receiving alimony or maintenance pursuant to an order. . . has wrongfully interfered with or withheld visitation rights provided by such order . . . the court, in its discretion, may suspend such payments or cancel any arrears that may have accrued during the time that visitation rights have been or are being interfered with or withheld.^[5]

The statute expressly permits the court to suspend maintenance payments without reference to suspension of child support payments, and for good reason. Suspension of spousal maintenance as opposed to child support penalizes the parent while avoiding potentially harming the child for the parent's misconduct (see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Court Act § 413 ["Suspension (of child support) harms the guilty parent and may or may not induce her to ameliorate the alienation, but unfortunately also harms her innocent children"]; Usack v. Usack, 17 AD3d 736, 739 [3d Dept 2005] [referring to alteration of child support obligations due to visitation interference as an "imperfect remedy"]).

Yet whether the Legislature intentionally omitted child support from the statute is unclear. The statute's legislative history provides no insight on this issue (see Hudson v. Hudson, 97 Misc 2d 558, 561 [Sup Ct, NY County 1978] ["Insofar as extrinsic aids to interpretation (of Domestic Relations Law § 241) are concerned such as a legislative memorandum, the memorandum by the legislative sponsor of the bill and other documents that the court has obtained, the court finds no guidance"]). Nor do the majority's pre-enactment case citations from the 1970's provide clear insight into the Legislature's intent. The statute "may have been intended to codify the existing case law as to both child support and alimony. In fact however the Legislature codified `half a loaf' and it is not clear as to whether it actually intended that the `half a loaf' be alimony" (id.).

In the absence of a clear restriction, it has become accepted practice through precedent and application of the statute, that "a noncustodial parent may affirmatively move the court for an order suspending spousal or child support payments where the custodial parent has wrongfully interfered with visitation" (Alan D. Scheinkman, Prac Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 241; see e.g. Matter of Kanya J. v. Christopher K., 175 AD3d 760, 763 [3d Dept 2019] ["a court may suspend child support payments for a period where the custodial parent (has) wrongfully interfered with or withheld visitation"] [internal quotation marks omitted], citing Domestic Relations Law § 241, lv denied 34 NY3d 906 [2019]; Matter of Luke v. Luke, 90 AD3d 1179, 1182 [3d Dept 2011] [same]; Matter of Lew v. Sobel, 91 AD3d 648, 648 [2d Dept 2012] [father's motion to hold support payments in escrow granted "(i)n light of the father's showing . . . that the mother continued to deliberately interfere with his visitation rights"] [citing Domestic Relations Law § 241]).

To suspend support, the guilty parent's conduct must rise to the level of "deliberate frustration [of] or active interference" with the other parent's visitation rights (see Zinger v. Robertson, 217 AD3d 471, 471 [1st Dept 2023]; Matter of Harry T. v. Lana K., 156 AD3d 511, 512 [1st Dept 2017]; Rodman, 112 AD3d at 537). To that end, the court's discretion to suspend or withhold payments lasts only so long as there remains such wrongful interference (see Domestic Relations Law § 241; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2d Dept 2007]; Gade v. Gade, 99 AD2d 796, 796 [2d Dept 1984]). Accordingly, courts have suspended support "pending further court order upon a showing that the mother has made good faith efforts to actively encourage and restore the father's relationship with the children" (Matter of Dobies v. Brefka, 83 AD3d 1148, 1153 [3d Dept 2011]; see also Whitaker v. Case, 122 AD3d 1015, 1020 [3d Dept 2014] [suspending the wife's child support obligation "pending the husband's demonstration of a good faith effort to assist in the therapeutic process undoubtably needed to reunite the wife with the children"]; Lew, 46 AD3d at 895 [directing the father's child support payments to be held in escrow until "the mother can certify, to the satisfaction of the Supreme Court . . . the absence of her interference with the father's visitation rights"]; Usack, 17 AD3d at 740 [suspending the mother's support obligation "pending further court order upon a showing that (the father) has made good faith efforts to actively encourage and restore (the mother's) relationship with the children"]).

II.

On December 27, 2021, the court denied the mother's request for pendente lite maintenance and child support based upon her financial circumstances and severe alienation. The court also denied the mother's request to order the father to pay the child's add-on expenses, except for unreimbursed medical expenses. Two and a half years later, on June 27, 2024, the court's order on appeal again denied temporary child support to the mother in response to her second child support motion.

In its 2024 decision, the court failed to consider whether the mother continued to severely alienate the child during the intervening 2 ½ year period between the 2021 and 2024 decisions to justify continued denial of support (see Rodman, 112 AD3d at 537 [suspension of child support payments warranted where "alienation has continued unabated and (the mother's) conduct remains unchanged" (internal quotation marks omitted)]; Lew, 91 AD3d at 648 [child support held in escrow because "the mother continued to deliberately interfere with his visitation rights"]). Specifically, the court did not determine whether the mother continued to actively interfere or deliberately frustrate the father's visitation rights, despite evidence presented by the mother that since the 2021 order, she met with a parenting coach multiple times and retained a parenting coach at the time of the court's June 2024 oral decision, participated in a family therapy program, and made efforts to coordinate visitation with the father (though I decline to comment on the sufficiency of this evidence).

On June 10, 2024, the court stated on the record that "even if the mother, even if, I focus on the `if' and it may well be just an `if,' the mother is not alienating the child from the father, but is, in fact, seeking to repair the relationship with the father. . . the reason for [the father-child relationship] still remains the alienating conduct that had occurred by the mother set forth in detail in [t]he Court's decision and order from a few years back." The court further stated that it "has monitored and . . . recognizes, it's certainly my belief without making explicit findings, that both parties have made different efforts toward repairing the relationship between the father and the child." Nevertheless, the court held that given that the father does not have a reasonable relationship with the child based upon the mother's prior conduct, "[it is] not appropriate to order the father to pay any child support of any kind other than voluntarily."

In its written decision dated June 27, 2024, the court reiterated that "even if each parent is making some effort . . . the effect remains not in controversy: the child remains alienated from her father. Whether [the mother] has made minimal or greater than minimal efforts at un-alienating the parties' daughter from [the father] is not the question, as it remains the case (indeed, the law of the case, post-trial) that [the mother] alienated the child from [the father]" (emphasis added). The court noted that the mother was "apparently" somewhat trying but that her "apparent[ ]" actions are too late.

In short, the court treated the mother's motion as "in essence, a reconsideration of the Court's December 27, 2021 Decision After Trial" and based its decision on whether to continue to deny child support on the mother's previous actions and their continued effects. The court not only failed to consider whether the mother continued to actively interfere with visitation but also failed to sufficiently consider its own prior directives in the 2021 order, including its denial of pendente lite child support until "there is otherwise good cause to resume the support."

The majority holds that the record supports a finding that the mother continued to interfere with the father's visitation sufficient to deny the mother's child support motion. The majority even makes factual findings that the mother violated the 2021 order. It is premature for this Court to make those determinations when there has been no hearing on visitation interference since the 2021 order, and when the motion court not only made no such findings^[6] in the order on appeal but specifically expressed an unwillingness to make factual findings. The court stated on the record that it recognized "without making explicit findings . . . both parties have made different efforts toward repairing the relationship between the father and the child." It instead denied support "even if each parent is making some effort," upon the belief that its prior alienation finding was "law of the case" (emphasis added).

Under the plain language of the order, the mother could never obtain pendente lite support since the order binds her during the pendency of the action to the findings of the 2021 order despite any meaningful efforts on her part to repair the relationship between the father and the child. This is an unfortunate reality given that this matter has been pending for years and may continue to span a considerable length of time.

The father emphasizes the court's finding that his relationship with the child may never be repaired. However, if the lingering effects of past alienation, as opposed to the custodial parent's present conduct, are determinative, then the noncustodial parent could gain a financial windfall by not having to pay support despite good faith efforts by the custodial parent to encourage visitation. It would also negate the purpose of the statute by making the custodial parent's efforts postjudgment or order irrelevant.

Finally, the fact that the mother allegedly has access to significant assets and that the child is not in danger of becoming indigent is not dispositive (see Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Court Act § 413 ["children may be significantly harmed through the withdrawal of support, even in the absence of indigency sufficiently severe to trigger public assistance eligibility"). The purpose of temporary child support is to not only ensure the child's reasonable needs are met but to maintain the status quo to provide children with a sense of continuity while the action is pending (see Anonymous v. Anonymous, 63 AD3d 493, 498 [1st Dept 2009], appeal dismissed 13 NY3d 921 [2010]; Kaufman v. Kaufman, 131 AD3d 939, 944 [2d Dept 2015]). The mother alleges that the father's net worth has ranged from $68 million to more than $90 million, while it is undisputed that she is a stay-at-home mother receiving financial assistance from her father to care for herself and the child. While the mother and child are by no means destitute, the mother alleges that she relied on the child's father for support during the marriage and without that support, the child's lifestyle while in the mother's care is substantially different than when the parties resided together during the marriage.

The majority notes that the father continues to voluntarily pay for the child's private school expenses which, if true, is certainly commendable, but the mother remains responsible for the child's other myriad necessities, including housing, utilities, school supplies, extracurricular activities, clothing, transportation costs, and other expenses. Certainly, where the mother relied on the father for support during the marriage, there can be no dispute that the denial of child support to the mother pending this litigation contravenes the status quo.

III.

In sum, I disagree with the majority's finding that Supreme Court providently exercised its discretion in denying support upon determining that the mother's efforts failed to result in regular visitation between the father and child. Under the circumstances of this case, including the passage of time since the 2021 order, the substantial disparity in the parties' financial circumstances, and the evidence in the record that the mother has made efforts to comply with the court's 2021 directives and to repair the father-child relationship, the court did not make sufficient findings to continue to deny support. The court should have considered, among other things, whether the mother is presently frustrating or actively interfering with the father's visitation rights to continue its order of suspension, and it failed to do so.

The majority is correct that speedy trials can remedy a perceived inequity in a pendente lite award. However, in the absence of a speedy trial — a common occurrence in matrimonial actions, as this years-long case demonstrates — the best remedy for inequity is the equitable application of the appropriate legal analysis. Accordingly, I would reverse and remand for a determination and consideration of an appropriate award of pendente lite child support if the court finds the high bar under Domestic Relations Law § 241 and applicable case law (see Cervera v. Bressler, 90 AD3d 803, 807 [2d Dept 2011], lv denied 19 NY3d 809 [2012]) has not been met, or upon good cause shown in accordance with the court's 2021 order.

Order, Supreme Court, New York County (Douglas E. Hoffman, J.), entered on or about June 28, 2024, which to the extent appealed from as limited by the briefs, denied defendant mother's motion for pendente lite child support in the amount of $25,000/month plus a $10,000/month travel allowance, affirmed.

All concur except Michael, J. who dissents in an opinion.

[1] In 1986, Domestic Relations Law § 241 was amended in connection with the enactment of the New York State Support Enforcement Act of 1986 (L 1986, ch 892) to clarify that "interference with visitation rights is not a ground for the cancellation of child support arrears. . . although such interference may provide a basis for the prospective suspension of child support" (Doyle v. Doyle, 198 AD2d 256, 257 [2d Dept 1993]; see also Ledgin v. Ledgin, 36 AD3d 669, 670 [2d Dept 2007]). This amendment is consistent with the prohibition on reduction or cancellation of child support arrears, which is not at issue in this appeal (see Domestic Relations Law § 236[B][9][b]; Family Court Act §§ 451; 460[1]; Matter of Dox v. Tynon, 90 NY2d 166, 170 [1997]).

[2] We disagree with the dissent that the motion court failed to consider whether the mother had complied with the 2021 order, whether she continued to actively alienate the child from the father, and whether she demonstrated good cause to modify the 2021 order's pendente lite child support determination. The motion court found that the child remained alienated from her father; that the mother had made either "minimal" or "greater than minimal" efforts that were insufficient to remedy the harm she had caused; that the child's reasonable and appropriate needs are being met; and that there was "no factual or legal basis" on which to grant the mother's motion.

[3] The dissent disapproves of our review of the factual record. However, we are permitted to review both facts and law (CPLR 5501[c]). The mother's failure to deny the father's assertions about her failure to comply with the 2021 order, despite the opportunity to do so, are properly deemed admissions (see Matter of Miguel S., 140 AD2d 202, 204 [1st Dept 1988]). Moreover, to the extent that the dissent relies on the motion court's decision to deny the father's cross-motion for contempt, that cross-motion is not included in the record. That the court granted the cross-motion solely to the extent of directing that the parties ensure that the child does not leave her cell phone at the mother's home and that the mother is not to communicate with the child during the father's parenting time except in emergency does not constitute a finding that the mother complied with all of the directives in the 2021 order.

[4] Nor does this Court's citation to Domestic Relations Law § 241 in Rodman (112 AD3d at 537) support the dissent's assertion that the statute is applicable to this case beyond its prohibition on cancellation of child support arrears. Indeed, the citation to the statute in Rodman is preceded by a citation to Ledgin (36 AD3d at 670), which held that interference with visitation "is not a ground for the cancellation of child support arrears." Similarly, each of the other, noncontrolling cases cited by the dissent expressly cites Domestic Relations Law § 241 for the proposition that child support may be suspended only prospectively (Matter of Kanya J. v. Christopher K., 175 AD3d 760, 763 [3d Dept 2019] ["the suspension must be prospective"]; Matter of Lew v. Sobel, 46 AD3d 893, 895 [2d Dept 2007][frustration of visitation "can warrant the suspension of future child support"]).

[5] The majority notes that neither relevant Supreme Court order in this case explicitly referenced nor relied on Domestic Relations Law § 241, but as discussed below, the court based the order on appeal upon its prior 2021 decision, which relied upon case law applying Domestic Relations Law § 241 (see e.g. Rodman v. Friedman, 112 AD3d 537, 537 [1st Dept 2013]). In any event, the absence of an explicit reference to the relevant Domestic Relations Law statute does not negate its direct application to the circumstances here nor limit our consideration of the statute and the parties' related arguments on appeal (see Nuevo El Barrio RehabilitaciOacute;n de Vivienda y EconomÍa, Inc. v. Moreight Realty Corp., 87 AD3d 465, 466 [1st Dept 2011]).

[6] To the contrary, the court's June 2024 oral and written decisions denied the father's application to hold the mother in contempt."