RESOLVING PARENTING TIME DISPUTE BETWEEN TWO PARENTS

SS v. MS, 2022 NY Slip Op 51090 - NY: Family Court 2022:

"In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent M.S. ("Respondent") filed this motion pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law seeking (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper. This file was transferred to the undersigned by Referee Gail A. Adams due to the nature of the motion. Following review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted in part.

Background

Petitioner and Respondent are the parents of four children, born XX XX, 2013, XX XX, 2015, XX XX, 2017, and XX XX, 2021 (the "children"). Beginning on December 20, 2021, the parties have engaged in extensive litigation in this court and have filed multiple petitions including family offenses, petitions for enforcement of court orders, and petitions for custody. On December 20, 2021, Respondent filed a family offense petition against Petitioner (Docket no. O-06460-21) and a petition for custody of the children (Docket nos. V-06463-22, V-06464-22, V-06465-22, V-06466-22). On the same date, a full stay away temporary order of protection was issued in favor of Respondent and the children and against Petitioner. After an appearance before the court, the stay away provisions of the temporary order of protection were removed on December 22, 2022 and the court entered a temporary order of visitation that set a schedule for Petitioner to have parenting time with the children. The temporary order of visitation also orders that "[n]either parent is to remove the child[ren] from the New York City area during the pendency of this proceeding without prior approval of the court." Following another appearance before the court on January 13, 2022, the children were removed from the temporary order of protection and the temporary order of visitation was also continued.

On January 19, 2022, Petitioner filed a custody petition to enforce the temporary order of visitation and for sanctions against Respondent (Docket nos. V-06463-21/22A, V-06464-21/22A, V-06465-21/22A, V-06466-21/22A). Petitioner filed an amended petition to enforce the temporary order of visitation on March 21, 2022, in which she alleges that Respondent "has taken the children out of the New York City area to live on Long Island without notifying courts. He has since blocked me and refused to drop off our child [R.]. Our children also aren't in school." On March 22, 2022, Petitioner filed a motion, by order to show cause, to punish Respondent for contempt for allegedly withholding the children in Long Island and refusing to give Petitioner access to them. This matter was then referred to the undersigned. On March 29, 2022, at an appearance before this court, Respondent withdrew his custody petition and the motion for contempt was dismissed as moot.

On March 30, 2022, Petitioner filed the instant a petition seeking custody of the children (Docket nos. V-02267-22, V-02268-22, V-02269-22, V-02270-22) and filed a family offense petition against Respondent (Docket no. O-02261-22). On the same date, a full stay away order of protection was issued in favor of Petitioner and against Respondent. The temporary order of protection was continued on May 3, 2022.

On May 16, 2022, an on-the-record conference was held before Referee Brenes. At the appearance, Petitioner requested that any parenting time with Respondent be supervised. The attorney for the child opposed the request for supervised visits, noting that there were no safety concerns regarding Respondent's care of the children and the children expressed that they love their father and want to spend time with him. Referee Brenes denied the request, stating that there were no grounds for supervised visits, and ordered that beginning May 20, 2022, Respondent would have weekly parenting time with the children every Friday at 5:00 p.m. until Sunday at 6:00 p.m., with pickup to occur curbside at Petitioner's home.^[1] An order memorializing this direction was issued on May 16, 2022 (S.S. affidavit in support, exhibit A), but was not emailed to the parties until May 23, 2022, due to an administrative error. The written order states, in pertinent part, "[c]ommencing Friday, May 20, 2022, and every week thereafter, the father [] may have visits with the children ... commencing at 5pm until Sunday at 6pm."

On May 20, 2022, Respondent arrived at Petitioner's residence to pick up the children, but Petitioner refused to produce the children (id. ¶ 4). The police arrived and Respondent was arrested for violating the outstanding temporary order of protection (id.). On May 21, 2022, a criminal court temporary order of protection was issued in favor of Petitioner and against Respondent (S.S. affidavit in opp ¶ 6). The criminal court order contains orders that Respondent stay away from and refrain from all communication with Petitioner, except for communications or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation or child abuse or neglect proceeding (Hazelwood affirmation in opp, exhibit A).

Petitioner also did not produce the children for the weekends of May 27, 2022, June 3, 2022, or June 9, 2022. She attests that she did not produce the children for parenting time on May 20, 2022 because she did not feel comfortable sending the children for parenting time without a copy of the court's order, and did not produce the children on the subsequent dates because of the criminal court order of protection (S.S. affidavit in support at 13).

Another conference was held with Referee Brenes on June 13, 2022. At the conference, Referee Brenes reiterated that Respondent was to have parenting time with the children and issued a second visitation order reflecting the same parenting time schedule set forth in the prior order. On June 14, 2022, there was another appearance before Referee Brenes for the purpose of assigning counsel to Petitioner. On June 17, 2022, Respondent picked up the children and exercised parenting time as directed in the order (S.S. affidavit in support ¶ 7). That weekend, Respondent took the children shopping and took the three older children to a salon, where they had their hair washed and cut (id.).

On June 24, 2022, June 25, 2022, and the weekends July 1, 2022 and July 8, 2022, Petitioner again refused to produce the children for parenting time with Respondent (S.S. affidavit in support ¶ 9).^[2] Petitioner argues that she did not send the children for parenting time on these dates for a variety of reasons. First, she attests that the children were very upset when they returned home from the June 17, 2022 visit with Respondent, and in particular M was upset that her hair was cut during the visit with Respondent (S.S. affidavit in support at 13). She offers no explanation regarding the June 24, 2022 visit. She attests that when she began preparing the children for the July 1, 2022 visit, the children reported that they did not want to visit with Respondent and Ivan had an anxiety attack when informed of the visit (S.S. affidavit in opposition ¶ 5). She then called ACS who purportedly stated she did not have to send the children to the visit if they did not want to go (id.). Petitioner further states that she did not send the children for parenting time with Respondent because she was waiting for the children to be interviewed by their attorney and, for the weekend of July 8, 2022, because the children wanted to attend their cousin's birthday party (id. ¶¶ 6-9).

The instant motion was filed, by order to show cause, on July 14, 2022 and the motion was assigned to the undersigned. Petitioner reports that she has consistently sent the children for parenting time with the Respondent since July 15, 2022, and Respondent does not contradict this representation (S.S. affidavit in opposition ¶ 11).

Discussion

Respondent's moves for an order of contempt for Petitioner's failure to produce the children for court-ordered parenting time for eight weekends between May 20, 2022 and July 10, 2022. He seeks relief pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law for (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and (5) for such other and further relief as the court deems just and proper.

Civil contempt is defined as "disobedience to a lawful mandate of the court" which prejudices the rights or remedies of another party to the litigation (see Judiciary Law § 753[A][3]). Civil contempt must be proven by clear and convincing evidence (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). The Court of Appeals has described the elements necessary to support a finding of civil contempt as follows:

First, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a party to the litigation must be demonstrated.

(id. [internal quotes and citations omitted]). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court" (Bauman v Bauman, 208 AD3d 624, 626 [2d Dept 2022]). "A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Jaffe v Jaffe, 44 AD3d 825, 826 [2d Dept 2007]). "Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" (Caro v Marsh USA, Inc., 101 AD3d 1068, [2d Dept 2012]).

The first element stipulated by the Court of Appeals is satisfied here because the temporary order of visitation, and continued orders, were clear and unequivocal. Petitioner's assertion to the contrary is incorrect (Hazelwood affirmation ¶ 17-19). Not only is the written language of the order clear, but Referee Brenes reiterated at both the May 16, 2022 and June 13, 2022 conferences that Respondent was to have parenting time with the children and stated that the order of protection is subject to the temporary order of visitation. At the May 16, 2022 conference she also denied Petitioner's May 16, 2022 request that the parenting time be supervised. Her instructions, both on the record and in the written order, were clear and unequivocal. Therefore, this element is satisfied.

Second, the order was disobeyed. Petitioner attests in her affidavit that she intentionally did not send the children for the court-ordered parenting time with Respondent (S.S. affidavit in opposition ¶ 5 ["On May 20, 2022, I still had not received an order from the court, and I did not send the children for visitation."; ¶ 7 ["On July 1, 2022, I did not send the children for visit with Mr. [S.] because the children's attorney had not yet spoken with the children to address the children's concerns."]). Assuming arguendo that the court excuses Petitioner's failure to produce the children for the weekend of May 20, 2022 and subsequent weekends when the criminal order of protection restricted Respondent's access to the children, the order was nevertheless violated on the weekends of June 24, 2022, July 1, 2022, and July 8, 2022. It is undisputed that Petitioner failed to produce the children on these dates, which prevented Respondent from exercising his court ordered parenting time. Petitioner's contention that Respondent must demonstrate that she "has failed to make good faith attempts to comply with the court's order" is unavailing because no such showing is required under New York law (see El-Dehdan, 26 NY3d at 36 ["Wilfulness is not an element of civil contempt ... civil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order "defeats, impairs, impedes, or prejudices the rights or remedies of a party"]).

Moreover, Petitioner's explanations for violating the court's orders are contrary to the record and, even if accepted as true, do not excuse her failure to comply with the clear order of the court. Respondent did not raise any safety concerns at either the May 16, 2022 or June 13, 2022 conference with Referee Brenes, where the attorney for the children consistently reported, at each court appearance, that the children love their father and want to spend time with him. Additionally, Petitioner was appointed counsel on June 14, 2022, and was always represented by counsel thereafter. Therefore, she had the necessary counsel and resources to petition the court to suspend visitation if appropriate but did not do so. Instead, Petitioner opted to substitute her own judgment for that of the court, which had clearly directed, on two separate occasions, that Respondent was to have parenting time with the children every weekend. Therefore, the second element necessary for a finding of contempt is satisfied.

Petitioner was also aware of the court's orders. She attended each court conference where the orders were issued and, except the May 16, 2022 order, she was in receipt of the court's orders prior to the start of the parenting time in question. Although the court order was not immediately disseminated to Petitioner due to a clerical error, it is uncontroverted that Petitioner was present at the court conference wherein the parties were directed to comply with court-ordered visitation. Petitioner does not dispute that she was aware of the court's orders at any time. Therefore, the third element is met.

Finally, Respondent's rights were prejudiced because he was not permitted to exercise the court-ordered parenting time. The natural right to visitation is a joint right of the noncustodial parent and the child (Gottlieb v Gottlieb, 137 AD3d 614, 619 [1st Dept 2016]). "Consequently, it is presumed that parental visitation is in the best interest of the child, absent proof that such visitation would be harmful" (id.) By failing to produce the children for court-ordered visitation, Petitioner prejudiced Respondent's right to exercise parenting time with the children (see Matthew A. v Jennifer A., 73 Misc 3d 1215(A), *16 [Sup Ct Monroe County 2021]["To suggest that a father is not `harmed' or `prejudiced' by the willful and intentional destruction of his negotiated joint custody rights and his right to visit with his children is an argument that violates every principle in New York's family law."]). Therefore, Respondent has demonstrated this element of civil contempt.

Whereas Respondent has demonstrated all of the elements of contempt by clear and convincing evidence, the court finds that Petitioner is in contempt of the court for failing to comply with the courts temporary orders of visitation dated May 16, 2022 and June 13, 2022. Having made this determination, the court must now determine the appropriate penalty. The purpose of any penalty imposed is not to punish but rather, to compensate the aggrieved party and to coerce compliance with the court's mandate (State of NY v Unique Ideas, 44 NY2d 345, 350 [1978]; Larisa F. v Michael S., 122 Misc 2d 520, 521 (Fam Ct Queens County 1984]). Respondent seeks an order of commitment, an award of sole legal and physical custody to Respondent, that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper.

With respect to the request for supervised visitation, Respondent did not raise any safety concerns on this motion regarding Petitioner's parenting that warrants limiting her parenting time to supervised visitation only. Additionally, although some courts have suggested that a change in custody may result from a finding of contempt under certain circumstances (see Heintz v Heintz, 28 AD3d 1154, [4th Dept 2006), this is strongly the minority position and is not an appropriate result here. Respondent withdrew his custody petition on March 29, 2022 after Petitioner filed her own motion for contempt and does not currently have a custody petition pending before this court. If Respondent wishes to seek an order of custody, he may do so by following the proper procedure.

Finally, the court must consider Respondent's request for an order of commitment. The violations in question here took place over a period of eight weekends and Petitioner has complied with the temporary order of visitation since that time. Therefore, an order of commitment, which is designed to compel compliance with the court's orders, would serve no purpose at this time (see Rubin v Rubin, 78 AD3d 812, 813 [2d Dept 2010]). Respondent should instead be compensated for what was lost—namely, valuable bonding time with the children. Therefore, it is the order of the court that Respondent shall have, in addition to the weekend parenting schedule currently in place, makeup overnight parenting time on the following school holidays: November 11, 2022, November 24, 2022, November 25, 2022, December 26, 2022 through January 2, 2023, January 16, 2023, February 20, 2023 through February 24, 2023, April 6, 2022, and April 7, 2022. The pickup and drop off schedule for these visits shall be as follows:

November 10, 2022 at 5:00 p.m. through November 13, 2022 at 6:00 p.m.

November 23, 2022 at 5:00 p.m. through November 27, 2022 at 6:00 p.m.

December 23, 2022 at 5:00 p.m. through January 2, 2023 at 6:00 p.m.

January 12, 2023 at 5:00 p.m. through January 16, 2023 at 6:00 p.m.

February 17, 2023 at 5:00 p.m. through February 26, 2022 at 6:00 p.m.

April 5, 2023 at 5:00 p.m. through April 9, 2023 at 6:00 p.m.

Any failure on the part of Petitioner to produce the children to Respondent on these dates, absent just cause, shall result in further findings of contempt punishable by an order of commitment."

CHILD SUPPORT - WHEN BOTH PARENTS HAVE EQUAL PARENTING TIME

Smisek v. DeSantis, 209 AD 3d 142 - NY: Appellate Div., 2nd Dept. 2022:

"We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents' physical custody of the children in such a manner that "neither can be said to have physical custody of the children for a majority of the time" (Baraby v Baraby, 250 AD2d 201, 204 [1998]). In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes (see Matter of Conway v Gartmond, 144 AD3d 795 [2016]; Baraby v Baraby, 250 AD2d 144*144 at 204)."

ICPC AND OUT OF STATE NON-CUSTODIAL PARENTS

MATTER OF DL v. SB, 2022 NY Slip Op 5940 - NY: Court of Appeals 2022:

"CANNATARO, Acting Chief Judge:

The Interstate Compact on the Placement of Children (ICPC or Compact) is an agreement among the states to follow certain procedures in connection with sending children across state borders "for placement in foster care or as a preliminary to a possible adoption" (Social Services Law § 374-a[1][art III][a]). The issue raised on this appeal is whether the ICPC applies to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies. We hold that it does not.

I.

Petitioner father, a North Carolina resident, and respondent mother, a New York resident, are the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father's home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, father commenced these custody proceedings, arguing that it was in the child's best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority's 2013 refusal to consent to the placement.

Family Court dismissed father's petitions without conducting a hearing. The court held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he is an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The court also rejected father's claim that the ICPC is unconstitutional to the extent that it purports to apply to a noncustodial parent's petition for custody of that parent's child. Father appealed.

The Appellate Division affirmed (183 AD3d 565 [2nd Dept 2020]), holding that Family Court properly determined that the ICPC applied because "the child was in the custody of DSS and . . . father resided in North Carolina" (id. at 566). The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father's 2013 ICPC request (id.).

We granted father leave to appeal (37 NY3d 901 [2021]) and now reverse.^[1]

II.

The ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is "construed as state law" in each adopting state (McComb v Wambaugh, 934 F2d 474, 479 [3d Cir 1991]). Governor Rockefeller approved New York's entry into the ICPC, which has since been codified in Social Services Law § 374-a (see Governor's Approval Mem, Bill Jacket, L 1960, ch 708).

The ICPC governs the "interstate placement of children" (Social Services Law § 374-a[1] [art I]) and "was designed to promote cooperation among [s]tates in providing each child with the maximum opportunity to be placed in a suitable environment with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care" (Matter of Shaida W., 85 NY2d 453, 458 [1995] [internal quotation marks, ellipsis, brackets, and citation omitted]). The Compact was further intended to provide a state receiving a child with a "full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child" (Social Services Law § 374-a[1] [art I][b]) and to enable a sending state to "obtain the most complete information on the basis of which to evaluate a projected placement before it is made" (id. § 374-a[1] [art I][c]). The ICPC also promotes "`appropriate jurisdictional arrangements for the care of the children involved'" (Matter of Shaida W., 85 NY2d at 459, quoting Mem of Jud Conf of State of NY, Bill Jacket, L 1960, ch 708) and "was designed to prevent States from unilaterally `dumping' their foster care responsibilities on other jurisdictions" (id.).

The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides:

"(a) No sending agency shall send . . . into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article . . .

"(b) Prior to sending . . . any child . . . into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice . . ." (emphasis added).

(Social Services Law § 374-a [art III][a], [b]). "Placement," in turn, is defined as "the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution" (id. § 374-a[art II][d]).

The Appellate Division Departments have disagreed regarding the applicability of the ICPC to noncustodial parents who reside outside New York. The Second Department has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that "[w]here the custody of a child who is under the supervision of the Commissioner [of Social Services] is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply" (Matter of Alexus M. v Jenelle F., 91 AD3d 648, 650-651 [2d Dept 2012]; see Matter of Faison v Capozello, 50 AD3d 797, 797 [2d Dept 2008]; Matter of Tumari W. v Lynell W., 65 AD3d 1357, 1358-1359 [2d Dept 2009]; Matter of Keanu Blue R., 292 AD2d 614, 614-615 [2d Dept 2002]). By contrast, the First Department has expressly declined to follow the Second Department's interpretation of the ICPC and, instead, has held that the ICPC "does not apply" to out-of-state noncustodial parents, reasoning that the plain language of the ICPC limits its application to placements in foster care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 AD3d 49, 52 [2019], lv dismissed 34 NY3d 1036 [2019]). The Third Department has recently endorsed the First Department's approach, albeit in dicta (see Matter of David Q. v Schoharie County Dept. of Social Servs., 199 AD3d 1179, 1181 n [3d Dept 2021], lv denied 38 NY3d 901 [2022]). We are now called on to resolve the disagreement regarding ICPC applicability to noncustodial parents.

III.

"It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the [l]egislature" and, because "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski v Broadalbin—Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks and citation omitted]). Moreover, "where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" (Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). "`Absent ambiguity the courts may not resort to rules of construction to [alter] the scope and application of a statute' because no such rule `gives the court discretion to declare the intent of the law when the words are unequivocal'" (Kuzmich v 50 Murray St. Acquisition LLC, 34 NY3d 84, 91 [2019], cert denied ___ US ___, 140 S Ct 904 [2020], quoting Bender v Jamaica Hosp., 40 NY2d 560, 562 [1976]).

By its terms, the ICPC governs the out-of-state "placement" of children "in foster care or as a preliminary to possible adoption" (Social Services Law § 374-a[1] [art III][a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Indeed, applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, "[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement" (Social Services Law § 374—a[1] [art V][a]). As the United States Court of Appeals for the Third Circuit observed, "[t]o construe the return of a child to [a] parent as a `placement' within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents' duty to support their children" (McComb, 934 F2d at 480). In short, as many courts in other states have concluded, there is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes (see e.g. A.G. v Cabinet for Health and Family Services, 621 SW3d 424, 432 [Ky 2021]; In re R.S., 470 Md 380, 404, 235 A3d 914, 928 [2020]; In re Emoni W., 305 Conn 723, 735, 48 A3d 1, 7 [2012]; In re Alexis O., 157 NH 781, 787, 959 A2d 176, 182 [2008]; Arkansas Dept. of Human Services v Huff, 347 Ark 553, 563, 65 SW3d 880, 888 [2002]; McComb, 934 F2d at 481; Matter of J. B., 310 Or App 729, 744, 489 P3d 598, 607 [Or Ct App 2021]; Matter of B.L.P., 91 NE3d 625, 630 [Ind Ct App 2018]; In re C.B., 188 Cal App 4th 1024, 1032, 116 Cal Rptr 3d 294, 299 [Cal Ct App 2010]).

Our decision in Matter of Shaida W. (85 NY2d 453 [1995]) does not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII (a) provides that the ICPC does not apply to "[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state" (Social Services Law § 374—a[1] [art VIII][a]), we explained that "the children were not legally `sent' to California by their grandmother" (Matter of Shaida W., 85 NY2d at 460). Rather, "[t]he official custodian" of the children was the "Department of Social Services of New York City," and it was the agency that "authorized the children to be `sent'" to California within the meaning of the statute (id.). That is, the children were sent by a social services agency to a "kinship foster care placement" in another state (Matter of Emmanuel B., 175 AD3d at 58) and, as such, this Court concluded that the ICPC applied (Matter of Shaida W., 85 NY2d at 460-461). Here, in contrast, placing a child with an out-of-state parent does not involve foster care or adoption and, thus, Shaida W. does not control.

IV.

Our reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact's legislative history and the underlying statutory purpose. "[N]othing in the language of the statute or the legislative history . . . indicate[s] that the ICPC was ever intended to address any individual other than an out-of-state foster or adoptive parent" (Matter of Emmanuel B., 175 AD3d at 56 [citations omitted]; see also Mem of Dept of Social Welfare, Bill Jacket, L 1960, ch 708, at 23 [explaining that the ICPC was intended to regulate the sending of children out of state "for placement in foster care" and "for the purpose of adoption"]; Budget Rep. on Bills, id. at 12 [observing that the statute "would broaden the placement field and provide greater opportunity for the placement in foster homes or adoption homes of the children in institutions"]). Further, an interpretation of the ICPC as applicable to noncustodial parents would be inconsistent with other components of New York's statutory framework governing child protection (see Matter of Jamie J. [Michelle E.C.], 30 NY3d 275, 284 [2017]), which overwhelmingly reflects "the preeminence of the biological family" (Matter of Michael B., 80 NY2d 299, 313 [1992]) and "embrace[s] a policy of keeping biological families together" whenever safely possible (Nicholson v Scoppetta, 3 NY3d 357, 374 [2004] [internal quotation marks omitted]; see Social Services Law § 384-b[1][ii]). In that regard, this Court has long acknowledged the Legislature's "fundamental social policy choice[,] . . . binding on this Court" to structure New York's foster care scheme around the right of parents "to the care and custody of a child, superior to that of others, unless the parent has abandoned that right or is proven unfit" (Matter of Michael B., 80 NY2d at 308-09).^[2]

We recognize that our interpretation of the ICPC conflicts with "Regulation 3" promulgated by the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC). Specifically, the AAICPC—an entity comprised of officials designated by each member state to coordinate ICPC matters (see Social Services Law § 374-a [art VII])—amended Regulation 3(2)(a) to "provide guidance in navigating the ICPC regulations and to assist its users in understanding which interstate placements are governed by, and which are exempt from, the ICPC" (American Public Human Services, ICPC Regulations, https://aphsa.org/AAICPC/Resources.aspx [last accessed, Oct 18, 2022]]). Regulation 3, as amended effective October 1, 2011, states in pertinent part that compliance with the ICPC is required for "Placements with parents and relatives when a parent or relative is not making the placement" (id. [emphasis added]). However, in light of our conclusion that the relevant text of the ICPC unambiguously confines its application to foster care and preliminary adoptive homes, Regulation 3 (2) (a) is inconsistent with its enabling legislation and, therefore, could not be given effect (cf. Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249, 254 [2004] [an agency cannot adopt regulations that are "inconsistent with the statutory language or its underlying purposes"]; see Matter of R.S., 470 Md at 404, 412 ["(A)ny regulation purporting to expand the application of the ICPC to out-of-state placements with a non-custodial, noncustodial parent is impermissible and will not be given the force of law"]; Matter of Emoni W., 305 Conn at 740-742; Matter of Alexis O., 157 NH at 787, 789; Ark. Dept. of Human Servs., 347 Ark at 563; McComb, 934 F2d at 481-482).^[3]

Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child's safety. Among other things, Family Court can hold hearings and request courtesy investigations and reports from the local social service agencies or department of probation in order to make determinations regarding a child's best interests. Additionally, rather than awarding an out-of-state parent full custody, Family Court Act § 1052 (a) provides for other dispositional options, including release to a parent with supervision. Similarly, Family Court may grant a temporary order of custody or guardianship to a noncustodial parent (see Family Court Act § 1017[2][a][i]; see also § 1055), which requires that a parent submit to Family Court's continuing jurisdiction and comply with the terms and conditions of the court's order—which may include making the child available for visits with social services officials (see Family Ct Act § 1017[3]). In such instances, the case remains on the court's calendar and the court maintains jurisdiction over the case until the child is discharged from placement and all orders regarding supervision, protection or services have expired (see Family Ct Act § 1088).

VI.

In conclusion, giving effect to the clear language of the ICPC as codified in Social Services Law § 374-a, we hold that the ICPC does not apply to out-of-state noncustodial parents seeking custody of their children. Accordingly, the order of the Appellate Division should be reversed, without costs, and the petitions reinstated.

Order reversed, without costs, and petitions reinstated. Opinion by Acting Chief Judge Cannataro. Judges Rivera, Garcia, Wilson, Singas and Troutman concur.

[1] This appeal is now moot because, among other things, during its pendency, father surrendered his parental rights to the subject child in this case. We nevertheless review the significant issue raised under the exception to the mootness doctrine (see City of New York v Maul, 14 NY3d 499, 507 [2010]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

[2] This Court has also recognized that "[t]he State may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of abandonment, surrender, persisting neglect, unfitness or other like behavior evincing utter indifference and irresponsibility to the child's well-being" (Matter of Marie B., 62 NY2d 352, 358 [1984]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 545-546 [1976]).

[3] The parties here have not raised a challenge to the validity or the legal effect of AAICPC Regulation 3." 

PARENTING TIME DURING COVID

J.R. v. S.R., NYLJ January 04, 2021, Date filed: 2020-11-18, Court: Family Court, Nassau, Judge: Judge Linda Mejias:

"....The issues regarding the Petitioner’s missed parenting time arose during earlier part of the course of the Covid-19 Pandemic, and specifically at or around the time that transmission was at its peak and information was still being gathered at the highest levels. During that time, and even so now, there was much confusion and uncertainty. Parents in non-intact families were forced to weigh the safety and health of their household members against releasing children so as not to impinge upon the rights of both parents and children to have time with each other. The correspondence submitted by both parties demonstrates the parties’ uncertainty as to the best course of action with respect to the Petitioner effectuating his parenting time with their son. Strict adherence to the parenting time schedule was difficult at that time, if not impossible. The Court is not convinced that the Respondent maliciously withheld their son, but rather the parties both chose to modify the Petitioner’s access based upon the restrictions and reality of the pandemic. Therefore, the Court does not find that she violated Stipulation of Settlement of the Judgment.

Accordingly, branch “1″ of the Petitioner’s motion is hereby DENIED.

Branch “2″ of the Petitioner’s motion seeking and order granting the Petitioner the right to exercise his parenting time with the parties’ children in accordance with the parties’ Stipulation of Settlement, and Judgment of Divorce is hereby GRANTED, and the parties shall endeavor to abide by both the Stipulation of Settlement and Judgment of Divorce as strictly as possible given the rise in infection rates of COVID-19 at this time, and they shall communicate with each other with as much as advance notice as possible if modifications need to be made to ensure the health and safety of the Children, their respective household members, as well as the community at-large.

Branch “3″ of the Petitioner’s motion seeking an order granting the Petitioner reasonable make up parenting time is hereby GRANTED, and the parties are directed to determine the dates and times for such “make-up” parenting through counsel.

...."

CUSTODY DISPUTES AND DELEGATING PARENTING

A common issue I have seen in custody disputes is as follows: Parent A is non-custodial parent with parenting time but Parent B, the custodial parent, argues that if Parent A is unable, due to work or any other reason, to exercise parenting time, the child remains with Parent B. But Parent A comes back with this argument: if I am unable to, let my parent, friend, family member take care of the child. Parent B argues that all of Parent A's parenting time should have Parent A present and if Parent A is unable to be present, then Parent A loses that time.

Without opining on whose position is in the best interests of the child, some legislatures have addressed this issue with military personnel. Section 306 of the Uniform Deployed Parents Custody & Visitation Act (UDPCVA). Section 306 allows the court, at the request of a deploying parent, to grant the service member’s portion of custodial responsibility in the form of caretaking authority to an adult nonparent who is either a family member or with whom the child has a close and substantial relationship.  

New York  has not enacted this although it has been proposed. Currently, N.Y. Dom. Rel. §75-L; N.Y. Dom. Rel. §240(a-2) are the relevant statutes which basically provide that  when the non-custodial parent is not available for parenting time due to deployment, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. New York also provides in New York General Obligations Law § 5-1551. Power of parent to designate a person in parental relation:

"A parent of a minor or incapacitated person may designate another person as a person in parental relation to such minor or incapacitated person pursuant to sections twenty-one hundred sixty-four and twenty-five hundred four of the public health law and sections two and thirty-two hundred twelve of the education law for a period not exceeding twelve months provided that there is no prior order of any court in any jurisdiction currently in effect that would prohibit such parent from himself or herself exercising the same or similar authority, and provided further, that, in the case where a court has ordered that both parents must agree on education or health decisions regarding the child, a designation pursuant to this subdivision shall not be valid unless both parents have consented thereto.  Such designation shall be in the form prescribed by section 5-1552 of this title, and may be presented to any school, health care provider or health plan that requires such designation by either the parent or the designee."

Also, New York's Surrogate's Court Procedure Act § 1726 permits standby guardian designations to take effect when the parents becomes subject to an administrative separation such that care and supervision of the child will be interrupted or cannot be provided.

AFTER THE DIVORCE - CO-PARENTING

It's hard to agree on how to raise a child even when parents are together (as I remember my childhood), but after divorce/separation, it can get even harder.

There are many articles, books, theories, etc., online and off. Here's a start with my best wishes:

http://www.helpguide.org/articles/family-divorce/co-parenting-tips-for-divorced-parents.htm

SUSPENSION OF CHILD SUPPORT

From Whitaker v Case, 2014 NY Slip Op 07707, 3rd Dept 11-13-14:

"We turn next to Supreme Court's directive retroactively suspending the wife's child support obligation and refunding certain child support made, challenged by both the husband and the attorney for the children ^[FN4]. A noncustodial parent's duty to support his or her children until the age of 21 (see Family Ct Act § 413 [1] [a]) may be suspended where he or she establishes that the custodial parent "wrongfully interfered with or withheld visitation" (Matter of Luke v Luke, 90 AD3d 1179, 1182 [2011]; see Domestic Relations Law § 241; Usack v Usack, 17 AD3d 736, 737-738 [2005]). Here, Supreme Court's decision describes a household rife with animosity and overtones of domestic violence. Indeed, the protracted hostility between the parties led the court to grant a mutual divorce pursuant to Domestic Relations Law § 170 (1) because "both [were] batterers and BOTH [were] victims." After one particularly abusive event, the wife left the household and the court ordered her and the children to engage in therapeutic visitation, with the husband's assistance. Regrettably, these sessions failed and were discontinued in March 2010, and the children refused further contact with the wife. In our view, while the record shows that the wife's behavior was not above reproach, it also supports the court's finding that the husband behaved badly in both his demeanor and his efforts to promote therapeutic counseling. Notably, for example, the initial therapeutic counselor asserted that he undermined the therapeutic process, and the court-appointed psychologist went even further, describing the husband as a "parent alienator" who "brainwashed" the children against the wife. Accordingly, we find a reasoned [*4]basis in this record for Supreme Court's determination to suspend the wife's child support obligations pending the husband's demonstration of a good faith effort to assist in the therapeutic process undoubtedly needed to reunite the wife with the children. Further, there is no indication that this remedy presented any risk to the children becoming public charges (see Usack v Usack, 17 AD3d at 740).

Upon its finding of interference, Supreme Court was authorized to suspend child support payments (see Domestic Relations Law § 241; Alan D. Sheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law § 241 at 22-23). Here, during the pendency of her application to suspend her child support obligation, the wife paid child support directly to the husband from November 2009 through April 22, 2011. Thereafter, pursuant to an order entered May 5, 2011, the wife paid child support to the support collection unit to be held pending resolution of her interference claim. Under the circumstances presented, we perceive no abuse of discretion in the court's determination to permit the wife's child support payments to be held in escrow during the pendency of the issue (see Matter of Lew v Sobel, 91 AD3d 648, 648 [2012]). Similarly, we find that, under the circumstances, the court properly suspended her child support obligation retroactively, but only to the date the escrow fund was established (compare Matter of Luke v Luke, 90 AD3d at 1182; Matter of Alexander v Alexander, 129 AD2d 882, 884 [1987]) and directed the return of the escrowed monies to her. In contrast, we find that Supreme Court improperly adjusted the distributive award payable to the wife to reimburse her for the child support payments that she actually made to the husband for the benefit of the children during the pendency of her application. In our view, this adjustment violated the "strong public policy against restitution or recoupment of support overpayments" (Johnson v Chapin, 12 NY3d 461, 466 [2009] [internal quotation marks and citation omitted]; see Katz v Katz, 55 AD3d 680, 683 [2008]). We see no reason to depart from that policy in this case."

CO-PARENTING IN DIVORCE

I heard of OurFamilyWizard before - it is a website which "provides a neutral zone for parent communication to help...manage the challenges of shared parenting with a former spouse or partner".

At a recent CLE, they were a sponsor and I received certain materials. To get an idea as to how contentious shared parenting can be, visit the website, view the program or click below to see a sample order language showing how courts can incorporate the use of the OurFamilyWizard website into a parenting/custody plan:

http://www.ourfamilywizard.com/ofw/index.cfm?LinkServID=C2F8F8B5-B889-3C6F-F3C51E3B219DA836&showMeta=0

NEW YORK DIVORCE - CHILD CUSTODY & SUPERVISED VISITATION

I point out the following recent case: IN THE MATTER OF THIERRY E. LEW, Appellant, v. DOROTHY M. LEW, Respondent. 2013 NY Slip Op 02076, Appellate Division of the Supreme Court of New York, Second Department. Decided March 27, 2013 - which is quoted in part:

""[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child" (Matter of Pettiford-Brown v Brown, 42 A.D.3d 541, 542 [internal quotation marks omitted]; see Matter of Walker v Diaz, 95 A.D.3d 1225; Matter of Kachelhofer v Wasiak, 10 A.D.3d 366). Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child (see Matter of Feldman v Feldman, 79 A.D.3d 871; Matter of Franklin v Richey, 57 A.D.3d 663, 665; Matter of Pettiford-Brown v Brown, 42 AD3d at 542). "However, a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child['s] best interest" (Matter of Peluso v Kasun, 78 A.D.3d 950, 951[internal quotation marks omitted]; see Matter of Feldman v Feldman, 79 AD3d at 871;Matter of Hom v Zullo, 6 A.D.3d 536).

Here, the Family Court did not possess adequate relevant information to determine that supervised visitation with the father, as provided for in the parties' judgment of divorce, was not in the subject child's best interests. Accordingly, the court erred in dismissing the father's petition to enforce the supervised visitation provisions of the judgment of divorce without an evidentiary hearing (see Matter of Sullivan v Moore, 95 A.D.3d 1223; Matter of Riemma v Cascone, 74 A.D.3d 1082; Matter of Pettiford-Brown v Brown, 42 AD3d at 542; see also Matter of Rodriguez v Hangartner, 59 A.D.3d 630, 631).

Moreover, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation" (Matter of Smith v Dawn F.B., 88 A.D.3d 729, 730; see Matter of Lane v Lane, 68 A.D.3d 995, 997-998; Matter of Thompson v Yu-Thompson, 41 A.D.3d 487, 488). Thus, it was also improper for the Family Court to determine that the father could not file further petitions concerning his visitation rights until he completed, inter alia, therapeutic counseling, anger management classes, and parenting skill classes (see Matter of Smith v Dawn F.B., 88 AD3d at 730; Matter of Lane v Lane, 68 AD3d at 998; Matter of Williams v O'Toole, 4 A.D.3d 371, 372).

Accordingly, the matter must be remitted to the Family Court, Nassau County, for an evidentiary hearing and a new determination of the father's petition."

EDUCATIONAL ISSUES IN DIVORCE

The Court of Appeals recently in Fuentes v. Bd. of Educ. of City of NY, 12 NY3d 309 (April 30, 2009) ruled that unless the parties in an agreement express otherwise, or the court does in a decree or order, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing, including but not limited to, educational decisions. This decision emphasizes the importance of divorcing, separated or other co-parents to determine these issues in advance. This case involved the noncustodial parent seeking a review of the special education services that a legally blind son was receiving and which the non-custodial parent deemed inadequate. When the non-custodial parent sought review by the education department, the appeal was denied due to lack of standing, viz., the non-custodial parent was not the proper party to make educational decisions for the child. Any party, whether married, separated or in any type of custody hearing, should realize the loss of certain parenting rights when sole and exclusive custody is given to the other parent.