Chase v. Chase

34 A.D.3d 1077, 825 N.Y.S.2d 310
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 22, 2006
StatusPublished
Cited by6 cases

This text of 34 A.D.3d 1077 (Chase v. Chase) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chase v. Chase, 34 A.D.3d 1077, 825 N.Y.S.2d 310 (N.Y. Ct. App. 2006).

Opinion

Mugglin, J.

Appeal from an order of the Family Court of Columbia County (Hummel, J.), entered May 18, 2006, which dismissed petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Following an 11-day hearing, Family Court, by order entered September 15, 2005, awarded respondent sole legal and physical custody of the parties’ minor child, Dylan (born in 2000), and established a visitation schedule for petitioner. Family Court did [1078]*1078so with “great hesitation,” noting respondent’s “marked weakness [es] as a parent,” including her insistence that petitioner sexually abused the child—despite the lack of sufficient credible evidence to sustain that allegation—and her noted lack of effort to encourage any sort of a relationship between the child and petitioner. Shortly thereafter, respondent failed to produce the child for a scheduled visitation with petitioner in Nassau County, prompting Family Court to order the parties to appear on September 28, 2005 to address this issue. At that time, it came to light that respondent recently had informed the child’s school psychologist that petitioner had sexually abused the child; the school psychologist, in turn, filed a report with the Nassau County Department of Social Services. Respondent conceded that she did not advise the school psychologist of the prior proceedings in Family Court or that the allegations of abuse had been thoroughly explored and laid to rest in the course thereof. Family Court then directed that neither party discuss the prior allegations of sexual abuse with anyone without the express permission of the court.

Notwithstanding that specific directive, respondent proceeded on September 30, 2005 to file a family offense petition in Nassau County Family Court seeking an order of protection and alleging that petitioner had sexually abused his son. Respondent again failed to mention the prior custody hearing and the findings made by Family Court with regard to such allegations. As a result of respondent’s actions, petitioner was arrested and taken into custody.

Petitioner thereafter moved by order to show cause for sole legal and physical custody of his child. Family Court made the motion returnable on October 13, 2005, at which time the parties were directed to appear before the court for a conference. Respondent specifically was advised to appear with the child on this date. Respondent did not appear as directed, electing instead to abscond with the child, whose whereabouts remained unknown for the next 15 days. Petitioner, who by now had obtained temporary custody of the child, then commenced this proceeding seeking sole legal and physical custody of his son.

A lengthy hearing ensued, at the conclusion of which Family Court found that petitioner had established a substantial change in circumstances—namely, respondent’s persistent and active interference with petitioner’s visitation rights, respondent’s absolute failure to comply with the court’s prior directives and her continuing refusal to accept the court’s finding that there was insufficient credible evidence to establish that petitioner sexually abused his son. Family Court further noted respon[1079]*1079dent’s lack of maturity and poor judgment, as evidenced by her attempts to engage in forum shopping and actively misrepresent the status of the then pending Family Court proceedings in Columbia County, as well as what the court characterized as respondent’s “dangerous obsession” with the notion that her child had been sexually abused, the latter of which, Family Court concluded, ultimately would cause emotional and perhaps physical harm to the child. Despite these detailed findings, Family Court nonetheless concluded that respondent should retain sole legal and physical custody of the parties’ child, reasoning that petitioner’s relationship with his son could be ensured and enhanced by providing him with more visitation and again prohibiting respondent from discussing the allegations of sexual abuse without providing copies of the court’s September 15, 2005 and May 18, 2006 orders. Petitioner’s subsequent application for a stay of Family Court’s May 18, 2006 order pending appeal was granted by this Court.

We conclude, based upon our review of the record as a whole, that Family Court’s decision to award respondent sole legal and physical custody of the parties’ minor child lacks a sound and substantial basis and, as such, cannot stand. Accordingly, for the reasons that follow, we reverse Family Court’s order, grant petitioner’s application for sole legal and physical custody of the parties’ minor child and remit this matter to Family Court to fashion an appropriate visitation schedule for respondent.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Paul LL. v. Tanya LL.
149 A.D.3d 1173 (Appellate Division of the Supreme Court of New York, 2017)
Dezil v. Garlick
114 A.D.3d 773 (Appellate Division of the Supreme Court of New York, 2014)
Chase v. Chase (In Re Chase)
392 B.R. 72 (S.D. New York, 2008)
Lewis v. VanWormer
45 A.D.3d 1196 (Appellate Division of the Supreme Court of New York, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
34 A.D.3d 1077, 825 N.Y.S.2d 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chase-v-chase-nyappdiv-2006.