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])."

CAT LAW - THE EVOLVING LAW OF PETS

Finn v. Anderson, NYLJ May 14, 2019, Date filed: 2019-04-30, Court: City Court, Chautauqua, Judge: Judge Frederick Larson, Case Number: CV-000108-19/JA:

"FACTS
 This is a replevin action requiring the Court to determine ownership/custody of a cat. Plaintiffs moved to Wescott Street in the City of Jamestown in September of 2018. Around that time, the Plaintiffs noticed a white cat frequently wandering onto their property looking for food. Plaintiffs state that the cat was quite thin, and had no identification tags. The Plaintiffs assumed that the cat was a stray, named him “Sylvester”, and began feeding the cat in the entry-way of their home. The Plaintiffs fed Sylvester frequently for several months before bringing him into their home. The Plaintiffs took the cat to the veterinarian on January 14, 2019 where he was given shots, treated for fleas, de-wormed, and micro-chipped. The veterinary report states that Sylvester had not been previously micro-chipped, but had previously been neutered prior to January 14, 2019. Plaintiff states that Plaintiff reported Sylvester to be 4-years-old. After having been an indoor cat since January 14, Sylvester accidentally got out of the house on February 2, 2019. Plaintiff’s asked their neighbors, who lived across the street, if they had seen Sylvester. The neighbor stated that Sylvester belonged to his girlfriend, the Defendant Ashlynn Anderson, and that she had taken the cat back. The Defendant states that the cat in question is named Marshmallow. The Defendant testified that Marshmallow was given to her by a co-worker in 2009. Since 2009, Marshmallow has lived in her home on Westcott Street, where the Defendant has resided for about 25 years. The Defendant had Marshmallow neutered as a kitten, but beside that visit, the Defendant has not taken him to the vet in the ten years that she has owned him. However, the Defendant did take Marshmallow for a vet “checkup” following the commencement of this action and after speaking with an attorney. The Defendant also testified that Marshmallow is and “indoor-outdoor” cat. Therefore, he may enter and exit the Defendant’s home using a cat-door whenever he chooses. The Defendant stated that at least three of the neighbors are all familiar with Marshmallow, and often feed him treats when he wanders onto their properties. Additionally, the Defendant testified that she has a second cat that also operates in this way, living both inside and outside the Defendant’s home to some degree. Based on these habits, the Defendant was not immediately concerned with Marshmallow’s failure to return home in January of 2019. The Defendant admitted that Marshmallow had absconded on previous occasions and was missing for a week or two, but eventually returned to her residence. Defendant states that she looked for Marshmallow around the neighborhood a couple weeks after his disappearance without success. The Defendant stated that she did not inquire with the Plaintiff’s regarding Marshmallow’s whereabouts. Finally, the Defendant’s boyfriend found Marshmallow outside on February 2, 2019, and Defendant repossessed Marshmallow.

Plaintiff argues that she is the true owner of the cat based on the lack of identification, overall neglected appearance of the cat, and the effort and money expended to feed and treat the cat for any illness. Defendant argues that she has been the rightful owner of the cat for ten years. Although the cat has lived and “indoor-outdoor” lifestyle, Defendant states that she has fed him and housed him for the duration of her ownership of him. Both parties claim to love the cat, and desire him to be a part of their family. Plaintiff has filed this Replevin Action in order to recover possession of Sylvester (a.k.a. Marshmallow) from her neighbor, the Defendant.

DISCUSSION
Replevin is a remedy employed to determine “the right of possession as well as recover specific, identifiable items of personal property”. See Practice Commentary following CPLR §7101; TAP Manutencao e Engenharia Brasil S.A. v. Intern. Aerospace Group, Corp., 127 F. Supp. 3d 202 (S.D. NY 2015); Heckl v. Walsh, 122 AD3d 1252, 996 N.Y.S.2d 413 (4th Dep’t 2014); see also 23 NY Jur Conversion, and Action for Recovery of Chattel §89. The term “personal property” includes chattels, and the term “chattel” refers to “things that can be used, handled, or transported, as horses, carriages, furniture, machinery, tools, and numberless objects to be seen about us in everyday life, the value of which is in the possession of the thing itself.” Niles v. Mathusa, 162 NY 546, 57 N.E. 184 (1900); see also 23 NY Jur Conversion, and Action for Recovery of Chattel §89.

Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property — sometimes referred to as “chattel” — just like a car or a table”. Travis v. Murray, 42 Misc 3d 447, 452, 977 N.Y.S.2d 621, 625 (Sup. Ct.); 2013 NY Slip Op 23405,
5; see also Mullaly v. People, 86 NY 365 [1881]; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150, 788 NYS2d 4 [1st Dept 2004]; Rowan v. Sussdorff, 147 App Div 673, 132 NYS 550 [2d Dept 1911]; ATM One, LLC v. Albano, 2001 NY Misc. LEXIS 910, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001]). The standard for recovery in a replevin action being “superior possessory right in the chattel” Pivar v. Graduate School of Figurative Art of NY Academy of Art, 290 AD2d 212, 213, 735 NYS2d 522 [1st Dept 2002]. Therefore, it is “the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.” Travis v. Murray, 2013 NY Slip Op 23405, 5, 42 Misc 3d 447, 453, 977 N.Y.S.2d 621, 626 (Sup. Ct.).

Nevertheless, there has been a slow evolution in New York case law towards the “dechattelization” of household pets, and away from the “overly reductionist and utilitarian” view. Id. New York Courts, as well as most Courts across the United States, are unwilling to go so far as to adopt a child custody or “best interests” standard. Travis v. Murray, 42 Misc 3d 447, 456; see generally Desanctis v. Pritchard, 2002 PA Super 221, 803 A2d 230, 232 [Pa Super Ct 2002]; Clark v. McGinnis (298 P3d 1137 [Kan Ct App 2013]; Morgan v. Kroupa, 167 Vt. 99, 702 A.2d 630 (1997); Houseman v. Dare, 405 N.J. Super. 538, 966 A.2d 24 (Super. Ct. App. Div. 2009).

The “best interests” standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or “its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.” Travis v. Murray, 2013 NY Slip Op 23405, 9-10, 42 Misc 3d 447, 459, 977 N.Y.S.2d 621, 630-31 (Sup. Ct.). The subjective factors that are “key to a best interests analysis in child custody — particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations — are, for the most part, unascertainable when the subject is an animal rather than a human.” Id. Second, even if it were possible to ascertain a pet’s feelings, and even if a Court could make a finding of a pet’s best interests, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors…[t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children”. Id.

Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” Travis v. Murray, 42 Misc 3d 447, 455; see also Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. The standard that has been adopted by some recent Court Decisions in New York is the “best for all concerned” standard. Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]; Travis v. Murray, 42 Misc 3d 447, 455.

In accordance with that standard, this Court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care. Travis v. Murray, 2013 NY Slip Op 23405,
10, 42 Misc 3d 447, 460, 977 N.Y.S.2d 621, 631 (Sup. Ct.); see also Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. In this way, the Court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.). Id.

DECISION
The decision in Travis v. Murray is a good starting point on the evolution of the law’s treatment of ownership or custody of pets over the last 100 years. Travis v. Murray, 42 Misc 3d 447, 455. Our perception of pets has clearly shifted over time away from a strict property view and towards a more humanistic and interest based view. Id.

Why Shouldn’t the Courts Determine Custody Based on the “Best Interests” of a Pet?
This Court is not persuaded that a court could not evaluate the “best interests” of a pet. Instead, it is the opinion of this Court, that the reason not to use a strict “best interests” standard is the fundamental difference between a human child and a domesticated dog or cat. The “best interests” of the child standard is based on the implicit understanding that the ultimate goal of the Courts is to ensure that the child is nurtured into independent adulthood. It is the future adult that must be the Court’s primary consideration, and not the interests of the father or mother. However, in the case of a pet cat or dog, the pet never becomes an independent being apart from the owner. So, if a Court chooses not to apply a property-based standard, and a “best interests of the pet” standard is inappropriate, what is the standard that should be applied in an action to recover custody and possession of a beloved pet?

While it appears the Appellate Division, Fourth Department, has not addressed the issue, this Court concludes that it is time to declare that a pet should no longer be considered “personal property” like a table or car. The Appellate Division, First Department, in a one-paragraph analysis of the contested ownership and possession of 10-year-old Lovey the cat, utilized a test of what was “best for all concerned”. Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. Those concerned were the two litigants, and Lovey the cat. Id.

In the instant case, this Court will apply a “best interests of all concerned” standard to the facts and testimony presented at the hearing. On the one hand, the Defendant in this replevin action has owned and possessed Sylvester (aka Marshmallow) for 10 years. The Defendant admitted that she had has only taken Sylvester (aka Marshmallow) to the vet once in that 10-year period (to have him spayed/neutered when he was a kitten). Additionally, the Defendant allowed Sylvester (aka Marshmallow) to come and go in the neighborhood, and the Defendant was aware that Sylvester (aka Marshmallow) was consistently fed by at least three neighbors. However, there is no real evidence of “abuse or neglect” of Sylvester (aka Marshmallow). The Court notes that Sylvester’s (aka Marshmallow’s) second ever visit to a vet via the Defendant only came about after the Defendant consulted with an attorney regarding defense of the instant replevin action. The Defendant testified that the cat has always been in decent health, and that her children are emotionally attached to Sylvester (aka Marshmallow).

On the other hand, the Plaintiffs’ testified that Sylvester (aka Marshmallow) began coming to their home begging for food immediately when they moved to Wescott Street in September of 2018. The Plaintiffs state that they initially let the cat into the entry-way of their home to feed him. The Plaintiffs believed the cat to be a stray. On or about January 14, 2019, the Plaintiffs took Sylvester (aka Marshmallow) into their home, and decided to make him an indoor cat. The Plaintiff’s provided Sylvester (aka Marshmallow) with veterinary care including rabies and FURCP vaccine (a vaccine against three potentially deadly airborne viruses). The Court notes that Plaintiffs believed Sylvester (aka Marshmallow) to be a 4-yearold cat at the time of the vet visit in January 2019. This suggests that the cat was in good health, given the fact that the cat was in fact 10 years old. On February 2, 2019, Sylvester (aka Marshmallow) got out of the Plaintiffs’ home and ended up across the street at the home of the Defendant.

Best Interests of All Concerned
In a very close decision, the Court finds that the “best interests of all concerned” test leaves the custody of the cat, Sylvester (aka Marshmallow), with the Defendant.

The Court is convinced that Plaintiffs were and are genuinely concerned for Sylvester’s (aka Marshmallow’s) welfare and spent time and money on his care. While the Court is perplexed that the Defendant never inquired with the Plaintiffs regarding the cat’s whereabouts between January 14, 2019 and February 2, 2019, the Defendant has been responsible for the care and custody of Sylvester (aka Marshmallow) for the last decade. Additionally, the Defendant has children who have some emotional attachment to the cat. Finally, when Sylvester (aka Marshmallow) got out of the Plaintiffs’ home he may have “voted with his feet” to return to his home of ten years with the Defendant and her children.

Therefore, based an analysis of the law and the evidence presented at the hearing, this Court finds in favor of the Defendant, and the Plaintiff’s claim is hereby dismissed"

CHILD CUSTODY - STAGE MOM LOSES CUSTODY

Reilly v Hager-Reilly, 2018 NY Slip Op 07767, Decided on November 14, 2018, Appellate Division, Second Department:

"Here, the Supreme Court's determination that the child's best interests would be served by awarding sole legal and residential custody to the plaintiff has a sound and substantial basis in the record and will not be disturbed. Further, the court's determination that awarding the defendant supervised parental access with the child would be in the child's best interests has a sound and substantial basis in the record and, likewise, will not be disturbed.

There was evidence in the record of, among other things, the defendant's interference with the child's relationship with the plaintiff, as well as the defendant's lack of appropriate judgment in many of her decisions regarding the child, including allowing the defendant's obsession with the child's acting career to take precedence over the child's attendance at school, causing the child to miss a significant number of days at school, despite indications that the child was struggling in various areas of her education. Additionally, in a one-year period, the defendant called the police a dozen times regarding the plaintiff, without sufficient reason, often while the child was present, one of those times being while the child was at an award ceremony at a sibling's school. Moreover, the psychiatric evaluation of the defendant revealed that the defendant acts erratically, in ways affecting her ability to competently parent the child, that she is "decompensating," and that while she suffers from mental illness, she rejects treatment."

ADOPTION: WHEN BIOLOGICAL PARENTS CHANGE THEIR MIND

Matter of Anya W. (Darryl W.--Chalika W.-R.), 2017 NY Slip Op 08673, Decided on December 13, 2017, Appellate Division, Second Department:

"Shortly after the birth of the subject child, the biological parents each executed an extrajudicial consent to the adoption of the child. The biological parents each subsequently executed a timely revocation of their extrajudicial consent, which was opposed by the adoptive parents. As a result, a "best interests" hearing was conducted pursuant to Domestic Relations Law § 115-b(3)(b) and (6)(d)(v).

The primary factors to be considered in determining what custodial disposition will be in a child's best interests include the ability to provide for the child's emotional and intellectual development, the quality of the home environment, and the parental guidance provided (see Eschbach v Eschbach, 56 NY2d 167, 172; Matter of Summer A., 49 AD3d 722, 725; Matter of Baby Boy M., 269 AD2d 450; Matter of Baby Boy P., 244 AD2d 491; Matter of Baby Boy L., 206 AD2d 470, 471). In addition, other relevant considerations include the original placement of the child, the length of that placement, the financial status and ability of the parents to provide for the child, and the relative fitness of the prospective adoptive parents and the biological parents (see Eschbach v Eschbach, 56 NY2d at 172; Miller v Pipia, 297 AD2d 362; Matter of Baby Boy M., 269 AD2d at 450; Matter of Baby Boy P., 244 AD2d 491; Matter of Baby Boy L., 206 AD2d at 471).

Here, the Family Court's determination was supported by the record. Specifically, the adoptive parents demonstrated the ability to establish and maintain continuous and stable relationships and employment, and the record demonstrates that they are better suited to meet the day-to-day and life-long physical, emotional, and material needs of the child. Thus, the hearing court properly determined that the best interests of the child will be promoted by allowing the adoptive parents to proceed with adoption (see Matter of Baby Boy M., 269 AD2d at 450; Matter of Baby Boy P., 244 AD2d at 492).

Contrary to the biological mother's contention, the Family Court properly determined that the biological parents' execution of the consent was not the product of any fraud, duress, or coercion (see Domestic Relations Law § 115-b[7]; Matter of Sarah K., 66 NY2d 223, 242; Matter of Baby Girl Z., 154 AD2d 471). Moreover, neither the biological mother's alleged mistake as to the meaning of the form nor her failure to read the form before signing it constitutes a valid ground for vitiating the consent (see Matter of Sarah K., 66 NY2d at 241; Matter of Baby Boy B., 163 AD2d 673, 674).