NY CUSTODY - EDUCATIONAL NEGLECT REQUIRES A CHANGE OF CUSTODY

This case is a reminder for me of the salient issue in my school CRA cases in MA.

CK v. LK, 2025 NY Slip Op 50992 - NY: Supreme Court, Richmond 2025:

"This matrimonial action was commenced on XX XX, 2024. The parties were married on XX XX, 2006, and there are two unemancipated children of the marriage to wit: BK (born XX XX, 2007) and AK (born XX XX, 2009).

By Short Form Order dated November 12, 2024, (NY St Cts Filing [NYSCEF] Doc No. 83) entered on consent of the parties, Defendant, LK, was directed to pay Plaintiff, CK, spousal maintenance in the amount of $934.00 per month and child support in the amount of $541.70 per month for AK, who was then residing with Plaintiff. BK remained in the physical custody of Defendant.

Defendant now moves by Order to Show Cause, asserting a substantial change in circumstances warranting revision of the current custodial and financial arrangements. Specifically, Defendant seeks temporary custody of both minor children; an award of child support from Plaintiff consistent with the Child Support Standards Act ("CSSA"); exclusive use and occupancy of the marital residence located at XXX XX Avenue, Staten Island, NY; and an Order compelling Plaintiff to bring current all outstanding financial obligations related to the marital residence. Defendant further requests reimbursement of specific discretionary expenses.

In support of his application, Defendant alleges that Plaintiff has failed to provide a stable and supportive environment for AK. Defendant appends documentary evidence demonstrating AK's chronic absenteeism (approximately 150 late arrivals and absences combined) (NY St Cts Filing [NYSCEF] Doc Nos. 84; 98) and an alarming number of missing assignments — nearly 100 (NY St Cts Filing [NYSCEF] Doc No. 86 at ¶8)— across various academic subjects, resulting in failing grades such as:

• Italian 3: 34.4% (14 missing assignments)

• Earth & Space 1: 25.7% (31 missing assignments)

• English: 32% (20 missing assignments)

• And similarly deficient performance in other courses. (see id at ¶9)

Defendant further asserts that AK failed to attend a mandatory Saturday course and that Plaintiff failed to intervene or take corrective action despite prior judicial admonishment.

Additionally, Defendant contends that Plaintiff has mismanaged the finances of the marital residence. Specifically, Defendant submits that the mortgage is now in arrears by approximately $27,000, and utility arrears include:

• $1,935.68 owed to Con Edison,

• $562.33 owed to National Grid,

• $1,141.61 owed to DEP, and

• approximately $500 in Verizon charges carried on Defendant's credit card. (NY St Cts Filing [NYSCEF] Doc No. 102)

Defendant also requests reimbursement for approximately $10,000 expended on BK's school trips, 50% of which he contends Plaintiff is obligated to contribute under equitable principles.

In opposition and by cross-motion, Plaintiff seeks an Order awarding her temporary custody of AK and an interim counsel fee award of $25,000. Plaintiff's opposition is grounded upon allegations that Defendant has engaged in conduct she characterizes as abusive and controlling since temporary custody was transferred pursuant to this Court's May 8, 2025 Short Form Order.

Plaintiff asserts, inter alia, that since May 12, 2025, AK has reported feeling unsafe in Defendant's home due to behaviors such as:

• Defendant allegedly videotaping the yard rather than interacting with AK,

• Removing AK's personal items, including her camera and blankets,

• Allegedly surveilling her through a bedroom window and while she slept,

• Locking AK out of the residence, and,

• Failing to maintain adequate food in the household. (NY St Cts Filing [NYSCEF] Doc No. 96)

Plaintiff further alleges that Defendant attempted to run her over with a vehicle on May 13, 2025, for which a police report was purportedly filed and an arrest warrant allegedly issued. Finally, Plaintiff requests interim counsel fees based upon an asserted disparity in financial resources between the parties and the increasing burdens of this litigation.

Defendant, in reply, vigorously denies Plaintiff's allegations, asserting that they are retaliatory and unsupported by credible evidence. Defendant reaffirms his commitment to addressing AK's educational needs and asserts that Plaintiff's ongoing financial neglect threatens the preservation of the marital estate.

Conclusions of Law

A. Custody

The overarching principle in custody determinations remains the best interests of the child. (see Eschbach v. Eschbach, 56 NY2d 167 [1982]; Friederwitzer v. Friederwitzer, 55 NY2d 89 [1982]; O'Mahoney v. O'Mahoney, 206 AD3d 819 [2d Dept 2022]; Matter of Williamson v. Williamson, 182 AD3d 604 [2d Dept 2020]) In evaluating this standard, the Court must assess the totality of the circumstances, including: the fitness of each parent; the stability and quality of the respective home environments; the demonstrated ability to meet the child's emotional and intellectual needs; and the past performance of each parent in fulfilling their custodial obligations. (see Matter of Tabitha T. S. M. (Tracee L. M.-Candace E.), 159 AD3d 703 [2d Dept 2018]; Matter of Grigoli v. Grigoli, 29 AD3d 792 [2d Dept 2006]).

Defendant has provided compelling and largely uncontroverted evidence that AK's academic welfare deteriorated significantly while in Plaintiff's custody. The Court is particularly troubled by the magnitude of absenteeism, missing assignments, and failing grades presented in the record. Plaintiff does not dispute these facts nor offer a persuasive explanation for AK's academic decline. Nor does Plaintiff articulate a concrete plan to remedy these deficiencies should custody be returned to her.

Conversely, Defendant has demonstrated proactive engagement with AK's school, including outreach to school officials to devise a remedial educational plan. These efforts are entitled to significant weight in the Court's assessment of the best interests of the child.

While Plaintiff's allegations of post-transfer misconduct by Defendant are grave, they are unsubstantiated by independent evidence. No corroborating police report is annexed regarding the surveillance allegations; nor is there an affidavit from AK herself. The only documented event — Defendant's May 13, 2025 arrest — remains pending adjudication in another forum and cannot, at this stage, alone justify disruption of the present custodial arrangement.

In balancing the record before it, the Court finds that AK's demonstrable educational needs weigh decisively in favor of maintaining temporary custody with Defendant at this time.

......"

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)."

DETERMINING RESIDENTIAL CUSTODY BY OVERNIGHTS

For this court in the Second Department, when the parenting time is joint and shared, the parent who spends more overnights with the children is deemed the custodial parent for child support purposes.

Matter of Aileen S. v. Michael D., NYLJ August 31, 2020, Date filed: 2020-05-07, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Toscano, Case Number: F-00984-20:

"The parties have never been married and have two children in common, Chiara D. and Michelangelo D. On January 27, 2020, the mother, Aileen S. (hereinafter “Mother” or “Ms. S.”) filed a support petition against the father, Michael D. (hereinafter “Father” or “Mr. D.”). In her petition, she alleges that she is entitled to child support because she asserts that the parties’ final order of custody and parenting time grants “the parties’ [sic] joint legal custody and shared parenting time.” On February 26, 2020, Mr. D. filed a motion to dismiss. In his papers, Mr. D. argues that Ms. S. is not entitled to child support because although the parties were awarded joint legal custody, the final order does not delineate residential custody. On March 16, 2020, Ms. S. filed opposition papers. Thereafter, the Court conducted two Skype conferences with the parties’ attorneys. Despite efforts to settle the motion, a resolution could not be reached. Both parties submitted supplementary papers which they agreed would be considered by the Court for the purposes of deciding the motion. On May 1, 2020, the motion was marked submit. Having considered the parties’ papers, the law, and counsels’ arguments, the Court’s determination is as follows:

DISCUSSION

A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7). See N.Y. FAM. CT. ACT §165(a) (McKinney’s 2020) (FCA adopts and applies CPLR where FCA is silent); see also See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2020). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2020); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Although Ms. S.’s petition states that she is entitled to support for the benefit of the parties’ two children, the Court finds that under the law, the relief she seeks is not warranted, and dismisses her petition.

For the purposes of calculating child support, a custodial parent is a parent who has physical custody for a majority of time. See Bast v. Rossoff, 91 N.Y.2d 723, 728 (1998); see also Watson v. Maragh, 147 A.D.3d 769, 769 (2d Dep’t 2017); Conway v. Gartmond, 144 A.D.3d 795, 796 (2d Dep’t 2016); Ambrose v. Felice, 45 A.D.3d 581, 582 (2d Dep’t 2007). It is well-settled in the Second Department that where neither parent has the children for the majority of the time, the non custodial parent is deemed to be the more monied spouse.¹ See Conway, 144 A.D.3d at 796 (citing cases). Where, as here, the parties disagree about whom has the children most of the time, a court must make a determination as to whom is the primary custodial parent. See Bast, 91 N.Y.2d at 728. There is no controlling law in the Second Department in that regard.

The stare decisis doctrine requires Second Department trial courts to follow precedents set forth in sister departments until controlling law in the Court of Appeals or Second Department is established. See Mountain View Coach Lines, Inc. v. Storm, 102 A.D.2d 663, 664(2d Dep’t 1984). Where there are differing views in sister departments, a Court is able choose which approach it deems to be the better one and apply it. See Mountain View Coach Lines, Inc., 102 A.D.2d at 664 66; Matter of Faragiano, 46 Misc. 3d 646, 649 (Erie Cty. Surr. Ct., Oct. 29, 2014) (citing cases). The First and Third Departments hold that the parent who spends more overnights with the children is the custodial parent. See Mitchell v. Mitchell, 134 A.D.3d 1213, 1214-215 (3d Dep’t 2015); Rubin v. Della Salla, 107 A.D.3d 60, 67-73 (1st Dep’t 2013); Smith v. Smith, 97 A.D.3d 923, 924 (3d Dep’t 2012). The Fourth Department holds that where there is an approximately even distribution of parenting time, the parent with the greater income is the non-custodial parent. See Brink v. Brink, 178 A.D.3d 1369, 1371 (4th Dep’t 2019); see also Rapp v. Horbett, 174 A.D.3d 1315, 1316 (4th Dep’t 2019). Mr. D. maintains that he has more overnights with the children and urges the Court to follow the First and Third Departments. Ms. S. urges the Court to follow the Fourth Department because she maintains that the parties enjoy shared parenting time with the children. She further asserts that she was awarded more waking hours with the children.

The Court finds the reasoning and holding in the First and Third Departments to be more persuasive than the Fourth Department. In Rubin v. Della Salla, 107 A.D.3d 60 (1st Dep’t 2013), the court sets forth a thorough analysis of its conclusion that overnights are the determinative factor. The Rubin court found that “[a]n hour-by-hour analysis of custodial time is just not workable and would run afoul of the ‘greater uniformity [and] predictability’ the CSSA was designed to promote.” Id. at 70. The Rubin court explained that: (1) the number of waking hours does not accomplish the goal of child support, which is to help a custodial parent provide the children with basic necessities; (2) since children’s daily activities are constantly ever-changing, children may not actually be with a parent during daytime hours; and, (3) the waking hours approach promotes manipulation by parents in trying to achieve the custodial parent designation. Id. Moreover, other New York trial courts have consistently followed the overnight approach.² See E.I. v. Y.A., 2018 N.Y. Misc. LEXIS 1230, at *19 (Queens Cty. Sup. Ct., Mar. 20, 2018); see also J.R. v. M.S., 56 Misc. 3d 975, 988-89 (N.Y. Cty. Sup. Ct., May 5, 2017); Joseph M. Lauren J., 45 Misc. 3d 1211(A) (N.Y. Cty. Sup. Ct., Oct. 22, 2014). Ms. S. acknowledges that Mr. D. enjoys more overnights with the children.³ Thus, applying the relevant law set forth in the First and Third Departments, the Court finds that Ms. S. is not the children’s custodial parent.⁴ Accordingly, accepting all alleged facts within the pleadings to be true, the Court finds that Ms. S. has failed to sufficiently set forth a cause of action.

Footnotes

1. There is no dispute amongst the parties that Mr. D. is the parent with the greater income.
2. The Court notes parenthetically that most recently, one New York trial court found that where the parties had roughly equal parenting time, the more monied spouse was the noncustodial parent. See Warshaw v. Warshaw, 2020 N.Y.L.J. LEXIS 415 (N.Y. Sup. Ct., Feb. 24, 2020). However, the Court declines to adopt this view as it is not appellate authority and is contrary to all prior New York trial court decisions, on the issue, within the Second Department. See Kolanu Partners, LLC v. Perry, 2015 N.Y. Misc. LEXIS 3344, at *5 (N.Y. Cty. Civil Ct., Sept. 16, 2015) (court decision of equal or inferior jurisdiction "is not necessarily controlling, through entitled to respectful consideration."); see also Matter of Nonhuman Rights Project Inc. v. Stanley, 49 Misc. 3d 746, 770 (N.Y. Cty. Sup. Ct., July 29, 2015) (same).
3. Ms. S. concedes such in an affidavit, dated June 21, 2019, submitted during a prior child support proceeding and attached as Exhibit F to Mr. D.'s motion to dismiss as well as a spreadsheet provided in Ms. S.'s supplemental papers on the instant motion.
4. The Court notes anecdotally that the children reside primarily with Mr. D. for 10 months out of the year. In the Honorable Ayesha Brantley's (hereinafter "Judge Brantley") Decision and Order, dated March 29, 2019, she granted "residential custody to [Mr. D.] solely for the purpose of determining the children's school district and a shared parenting schedule between the parties." Although she "endeavored to create a schedule that is balanced and affords both parties meaningful and regular access to the children," Judge Brantley found that "the children's interests are best served by residing with [their father] primarily during the school year (September through June) and residing with [their mother] primarily during the summer months (July and August)." Id.

IS CUSTODY SHARED OR NOT

MATTER OF MITCHELL v. Mitchell, 134 AD 3d 1213 - NY: Appellate Div., 3rd Dept. 2015:

"Initially, we reject the father's argument that Family Court should have determined that he was the child's custodial parent. Generally, the custodial parent for purposes of child support is the parent who has physical custody of a child for the majority of the time "based upon the reality of the situation" (Riemersma v Riemersma, 84 AD3d 1474, 1476 [2011] [internal quotation marks and citation omitted]). If the parenting time is shared equally, then the parent with greater income is deemed to be the noncustodial parent for purposes of calculating child support (see Smith v Smith, 97 AD3d 923, 924 [2012]).

Here, no party disputes the Support Magistrate's conclusion that, during the school year, the child spends an equal number of overnights at each party's home and, during the summer months, the child is with the mother eight nights and the father six nights. Consequently, Family Court determined that because the parents' have "close to equally shared physical custody," the father, as the more monied spouse, was the noncustodial parent. The father contends that he has physical custody of the child a majority of the time because, pursuant to the 2007 order, the child was with him eight full days, six nights and two half days during any 14-day period in the summer months, and, therefore, he should be deemed the custodial parent.^[1] The flaw in this argument is that "shared" custody need not be "equal" (Smith v Smith, 97 AD3d at 924). Here, with the exception of the days during the summer weeks when the mother was unavailable and the father was available to exercise parenting time, the custodial schedule was unchanged, and we decline to accord greater weight to the custodial days as compared to the overnight custodial periods (see Matter of Somerville v Somerville, 5 AD3d 878, 880 [2004]). Based on the "reality of the situation" (Riemersma v Riemersma, 84 AD3d at 1476 [internal quotation marks and citation omitted]), as demonstrated by the record, we discern no error in Family Court's determination that the parties shared "close to equally shared physical custody of the child.""

IS CUSTODY SHARED OR NOT

MATTER OF TM v. JK, 2016 NY Slip Op 26315 - NY: Family Court 2016:

"......Respondent's basic visitation schedule consisted of three weekends per month, one night during the week (as agreed), and holidays and vacations (as agreed). For the 2015 calendar year, the evidence (particularly, respondent's exhibit A) showed that the child spent about 33.74 percent of all hours with the father, and thus the child spent about 66.26 percent of all hours with the mother. Respondent's exhibit A also showed that the child spent "40.27 % of all days" with the father, but this percentage is skewed because some of the "days" were not overnights. Courts have declined to accord greater weight to the custodial days as compared to the overnight custodial periods (see, Somerville, id. at 880, and Matter of Mitchell v. Mitchell, 134 AD3d 1213, 1215 [3d Dept 2015]). Clearly, the petitioner is the party with primary physical residence of the child."