At page 1321 “repetition of an accusation does not corroborate a child's prior statement”24 citing cases
- Matter of Werner v. Kenney, 2026 NY Slip Op 02754 (N.Y. App. Div. 4th Dep't 2026). It is true that out-of-court statements of a child, "if corroborated, are admissible in custody and visitation proceedings that are 'based in part upon allegations of abuse or neglect' " ( Matter of Montalbano v Babcock , 155 AD3d 1636, 16…
- Matter of Jacob WW. v. Joy XX., 2020 NY Slip Op 1209 (N.Y. App. Div. 3d Dep't 2020). Although the father contends that these statements were admissible to prove abuse or neglect by the mother and/or maternal grandparents, there were not any allegations of abuse or neglect in the father's custody petition ( see Family Ct Ac…
- Matter of Cassidy S. v. Bryan T., 180 A.D.3d 1171 (N.Y. App. Div. 3d Dep't 2020).Each time, upon questioning, the child provided consistent accounts indicating that it was the fiancÉe who had struck her in the face. [FN2] Although the child's repetition of the accusation, standing alone, is not sufficient to corroborat…
- Matter of Suzanne QQ. v. Ben RR., 2018 NY Slip Op 3180 (N.Y. App. Div. 3d Dep't 2018)."A child's out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated" ( Matter of Hamilton v Anderson , 143 AD3d 1086, 1087 [2016] [citations omit…
- Matter of Montalbano v. Babcock, 155 A.D.3d 1636 (N.Y. App. Div. 4th Dep't 2017).Such statements, if corroborated, are admissible in custody and visitation proceedings that are “based in part upon allegations of abuse or neglect” (Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [3d Dept 2008], lv denied 12 NY3d 706 [2009…
- Matter of Hamilton v. Anderson, 143 A.D.3d 1086 (N.Y. App. Div. 3d Dep't 2016).A child’s out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated (see Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lv denied 12 NY3d 7…
- Matter of Leighann W. v. Thomas X., 141 A.D.3d 876 (N.Y. App. Div. 3d Dep't 2016).The corroboration requirement is not demanding and may be “satisfied by any other evidence tending to support the reliability of the [child’s] previous statements” (Matter of Columbia County Dept. of Social Servs. v Kristin M., 92 AD3d 110…
- Zukowski v. Zukowski, 106 A.D.3d 1293 (N.Y. App. Div. 3d Dep't 2013). Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings based upon allegations of abuse, the children’s out-of-court statements are excepted from the hearsay rule, but must be corroborated (see Matter of Kimberly CC.…
- Yishak v. Ashera, 90 A.D.3d 1184 (N.Y. App. Div. 3d Dep't 2011).Giving due deference to the court’s credibility determination (see Matter of Fitzpatrick v Fitzpatrick, 77 AD3d 1108, 1109 [2010]; Matter of Cobane v Cobane, 57 AD3d 1320, 1321-1322 [2008], lv denied 12 NY3d 706 [2009]), we cannot conclude…
- Spiewak v. Ackerman, 88 A.D.3d 1191 (N.Y. App. Div. 3d Dep't 2011).We affirm. “ ‘Modification of an existing custody arrangement is appropriate where the petitioner establishes by a preponderance of the evidence that there has been a change in circumstances and that modification is necessary to ensure the…
Show 14 more citing cases
- Kimberly CC. v. Gerry CC., 86 A.D.3d 728 (N.Y. App. Div. 3d Dep't 2011).One of those witnesses testified that the child stated that the father’s touching showed her “he loved [her] the mostest,” a statement that Family Court found to be “more indicative of . . . a statement made by an adult perpetrator rather…
- In re Destiny F., 85 A.D.3d 1229 (N.Y. App. Div. 3d Dep't 2011).With respect to a child’s out-of-court statements, those statements “may be corroborated by ‘[a]ny other evidence tending to support the reliability of the previous statements’ ” (Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lv de…
- Joseph YY. v. Terri YY., 75 A.D.3d 863 (N.Y. App. Div. 3d Dep't 2010). Modification of an established custody arrangement requires a showing, by a preponderance of the evidence (see Matter of Cobane v Cobane, 57 AD3d 1320, 1321-1322 [2008], lv denied 12 NY3d 706 [2009]), that there is a sufficient change in c…
- Scott QQ. v. Stephanie RR., 75 A.D.3d 798 (N.Y. App. Div. 3d Dep't 2010).Likewise, the father’s testimony as to what the child told him was not suf ficiently corroborated (see Family Ct Act § 1046 [a] [vi]; Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lv denied 12 NY3d 706 [2009]).
- In re Dylan TT., 75 A.D.3d 783 (N.Y. App. Div. 3d Dep't 2010).Respondent argues that his stepson’s out-of-court statements regarding the incidents were not sufficiently corroborated by evidence tending to support their reliability (see Family Ct Act § 1046 [a] [vi]; Matter of Cobane v Cobane, 57 AD3d…
- In re Lindsey BB., 70 A.D.3d 1205 (N.Y. App. Div. 3d Dep't 2010).In this case, the children’s out-of-court statements discussed many of the same events and, thus, cross-corroborated one another (see Matter of Nicole V., 71 NY2d 112, 124 [1987]; Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lv de…
- Gardner v. Gardner, 69 A.D.3d 1243 (N.Y. App. Div. 3d Dep't 2010).As the present custody proceeding was based in part upon claims of abuse or neglect, however, the child’s out-of-court statements fell within an exception to the hearsay rule if sufficiently corroborated, which they undoubtedly were here (…
- Omahen v. Omahen, 64 A.D.3d 975 (N.Y. App. Div. 3d Dep't 2009).An existing custody arrangement will be modified only where circumstances have changed such that modification is necessary to further the children’s best interests (see Matter of Zwack v Kosier, 61 AD3d 1020, 1021 [2009]; Matter of Langley…
- Thomas M.F. v. Lori A.A., 63 A.D.3d 1667 (N.Y. App. Div. 4th Dep't 2009).The father presented medical evidence corroborating the hearsay evidence with respect to an incident in December 2006 in which his daughter was allegedly sexually abused by the mother’s former boyfriend, and he presented testimony that the…
- In re Maddesyn K., 63 A.D.3d 1199 (N.Y. App. Div. 3d Dep't 2009).While consistent statements made by Cambree to her mother might be insufficient standing alone (see Matter of Richard SS., 29 AD3d 1118, 1121 [2006]), here Cambree’s statements were further corroborated by testimony of the telling location…
- Matter of King v. Pelkey, 2024 NY Slip Op 03654 (N.Y. App. Div. 4th Dep't 2024)."It is well settled that there is 'an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature's intent to protect children from abuse and neglect as evidenced in Family…
- Matter of Poromon v. Evans, 2019 NY Slip Op 7205 (N.Y. App. Div. 4th Dep't 2019).Such statements, when corroborated, "are admissible in custody and visitation proceedings that are based in part upon allegations of abuse or neglect" ( Matter of Montalbano v Babcock , 155 AD3d 1636, 1637 [4th Dept 2017], lv denied 31 NY3…
- Matter of Jennifer B. v. Mark WW., 2018 NY Slip Op 1370 (N.Y. App. Div. 3d Dep't 2018).Although out-of-court statements made by the children would be admissible in a custody proceeding to the extent that they relate to allegations of abuse or neglect and are corroborated ( see Family Ct Act § 1046 [a] [vi]; see Matter of Cob…
- Matter of William J.B. v. Dayna L.S., 2018 NY Slip Op 774 (N.Y. App. Div. 4th Dep't 2018).Contrary to the mother's remaining contention, the court's determination to award primary physical custody of the child to the father with supervised visitation with the mother is [*2]supported by a sound and substantial basis in the recor…
At page 1322 “modification of an existing custody arrangement is appropriate where the petitioner establishes by a preponderance of the evidence that there has been a change in circumstances and that modification is necessary to ensure the best interests of the children”11 citing cases
- Matter of Thompson v. Wood, 156 A.D.3d 1279 (N.Y. App. Div. 3d Dep't 2017). Similarly, the record supports Family Court’s finding that the mother willfully violated the 2011 order by her admitted failure to bring the child to visitation and by her discussion of court proceedings with the child, as well as the cour…
- Matter of Palazzolo v. Giresi-Palazzolo, 138 A.D.3d 866 (N.Y. App. Div. 2d Dep't 2016).However, the mother asserted that the children, who were teenagers, adamantly refused to attend the therapy appointment. *867 To establish a willful violation of a Family Court order, the petitioner has the burden of proving his or her cas…
- Matter of Eller v. Eller, 134 A.D.3d 1319 (N.Y. App. Div. 3d Dep't 2015).Accordingly, we cannot conclude that Supreme Court abused its discretion in finding that the mother willfully violated the order by failing to obtain the father’s consent prior to enrolling the child in the program (see Matter of Hissam v…
- Mary Ann YY. v. Edward YY., 100 A.D.3d 1253 (N.Y. App. Div. 3d Dep't 2012). This evidence, all of which is uncontroverted and not in dispute, provides a clear and convincing basis for Family Court’s determination that respondent deliberately and willfully violated the order of protection (see Matter of Hissam v Hi…
- Sherman v. Cook, 90 A.D.3d 1170 (N.Y. App. Div. 3d Dep't 2011).According deference to the court’s credibility determinations, we cannot say that the court abused its discretion in holding that the father failed to meet his burden of proving a willful violation by clear and convincing evidence (see Mat…
- Munson v. Fanning, 84 A.D.3d 1483 (N.Y. App. Div. 3d Dep't 2011).The mother argues that since the father admitted to smoking in his car while the child was present and in the bedroom of his house while she was in his home, Family Court erred by not holding him in contempt for willfully violating its ord…
- Seacord v. Seacord, 81 A.D.3d 1101 (N.Y. App. Div. 3d Dep't 2011). Moreover, “[a] willful violation of a Family Court order must be established by clear and convincing evidence” (Matter of Cobane v Cobane, 57 AD3d 1320, 1322-1323 [2008], lv denied 12 NY3d 706 [2009]; see Matter of Blaize F., 48 AD3d 1007,…
- Tamara FF. v. John FF., 75 A.D.3d 688 (N.Y. App. Div. 3d Dep't 2010).Given these restrictions on the parties’ ability to effectively communicate and the father’s recent troubling behavior, we find that Family Court had a sound and substantial basis for declining to grant joint custody (see Matter of Kowatch…
- Kowatch v. Johnson, 68 A.D.3d 1493 (N.Y. App. Div. 3d Dep't 2009).It was evident from the testimony that the father and mother had significant difficulty communicating with each other and making joint decisions in matters relating to the children (see Matter of Cobane v Cobane, 57 AD3d 1320, 1322 [2008],…
- John SS. v. Amy SS., 61 A.D.3d 1305 (N.Y. App. Div. 3d Dep't 2009).Without such a showing, the father could not establish by clear and convincing evidence that the mother willfully violated the stipulated order (see Matter of Cobane v Cobane, 57 AD3d 1320, 1322 [2008]; Matter of Aurelia v Aurelia, 56 AD3d…
Show 1 more citing case
- Wentland v. Rousseau, 59 A.D.3d 821 (N.Y. App. Div. 3d Dep't 2009).Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings that are based in part upon allegations of abuse or neglect, and the subject child’s prior out-of-court statements are excepted from the rule against hearsay if they are su…
At page 1323 “distills to a credibility determination”11 citing cases
- Matter of Tamika B. v. Pamela C., 134 N.Y.S.3d 489 (N.Y. App. Div. 3d Dep't 2020).Whether "violations were willful distills to a credibility determination," upon which we generally defer to Family Court ( Matter of Cobane v Cobane , 57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]).
- Matter of Carl KK. v. Michelle JJ., 2019 NY Slip Op 6548 (N.Y. App. Div. 3d Dep't 2019).Deferring to Family Court's credibility determinations, we decline to disturb Family Court's conclusion that the mother consistently violated the April 2017 order and that such violations were willful ( see Matter of Jones v Jones , 75 AD3…
- Matter of Richard GG. v. M. Carolyn GG., 2019 NY Slip Op 1268 (N.Y. App. Div. 3d Dep't 2019).Thus, the issue of whether there was a willful violation of the custody order distills to a credibility determination ( see Matter of Cobane v Cobane , 57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]).
- Matter of James XX. v. Tracey YY., 146 A.D.3d 1036 (N.Y. App. Div. 3d Dep't 2017).Accordingly, Family Court correctly found that, although there were violations of the modified order, they were not willful on the part of the mother, but, rather, due to the children’s resistance to visitation, and its credibility determi…
- Dejesus, April K. v. Haymes, Rodney N., 126 A.D.3d 1352 (N.Y. App. Div. 4th Dep't 2015).Given the conflicting nature of the evidence, whether the mother’s violation was willful with respect to her denial of the *1353 father’s custodial access to the children “distills to a credibility determination” (Matter of Cobane v Cobane…
- Michelle V. v. Brandon V., 110 A.D.3d 1319 (N.Y. App. Div. 3d Dep't 2013). Overall, the court afforded the mother wide latitude as a pro se law school graduate, and our review of the record finds no support for her claim that the court’s decision was affected by any bias (see Matter of Memole v Memole, 63 AD3d 13…
- Constantine v. Hopkins, 101 A.D.3d 1190 (N.Y. App. Div. 2012). Giving deference to Family Court’s credibility determinations (see Matter of Cobane v Cobane, 57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]), we find that the record evidence supports the finding that the father did not willfully…
- Shannon v. Brandow, 86 A.D.3d 752 (N.Y. App. Div. 3d Dep't 2011).To prevail in this proceeding, the father was obligated to establish, by clear and convincing evidence (see Matter of Cobane v Cobane, 57 AD3d 1320, 1323 [2008], Iv denied 12 NY3d 706 [2009]; Matter ofBlaize F, 48 AD3d 1007 , 1008 [2008]),…
- Holland v. Holland, 80 A.D.3d 807 (N.Y. App. Div. 3d Dep't 2011).Further, the petitioner must establish that the respondent’s alleged violation was willful (see Matter of Omahen v Omahen, 64 AD3d at 977 ; Matter of Blaize F., 48 AD3d 1007 , 1008 [2008]), which ultimately depends on the credibility of th…
- Chastity F. v. Ernest G., 77 A.D.3d 1112 (N.Y. App. Div. 3d Dep't 2010).Since Family Court has the opportunity to view the witnesses as they testify, we typically accord deference to its credibility determinations (see Matter of Cobane v Cobane, 57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]; Matter o…
Show 1 more citing case
- Jones v. Jones, 75 A.D.3d 786 (N.Y. App. Div. 3d Dep't 2010).According deference to Family Court’s credibility determinations, we will not disturb its finding of a willful violation here (see Matter of Cobane v Cobane, 57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]; Matter of Aurelia v Aure…
v.
Brian Cobane, (And Four Other Related Proceedings.)
[*1321] Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of three daughters (born in 1994, 1996 and 1998). Each of the children suffers from a congenital vision problem and, to varying degrees, has special needs. After the parties separated, Family Court entered a September 2005 order, on consent, providing for joint legal custody, primary physical placement with the mother and parenting time for the father. Both parties filed petitions seeking modification of the custody order and alleging that the other party violated prior orders. Following an extensive hearing, the court modified the prior order by granting sole custody to the father and parenting time to the mother. In a separate order, the court dismissed the mother’s violation petition against the father, but held that the mother willfully violated two orders. The mother appeals from the custody modification and the findings of willful violations.
Family Court’s decision was not based upon inadmissible hearsay. Under Family Ct Act § 1046 (a) (vi), which is applicable to custody proceedings based in part upon allegations of abuse or neglect, the subject children’s prior out-of-court statements are excepted from the hearsay rule but must be corroborated (see Matter of Bartlett v Jackson, 47 AD3d 1076, 1077 [2008], lv denied 10 NY3d 707 [2008]; Matter of Bernthon v Mattioli, 34 AD3d 1165, 1165-1166 [2006]; Matter of Baxter v Perico, 288 AD2d 717, 717 [2001]; Matter of Pratt v Wood, 210 AD2d 741, 742 [1994]). These statements may be corroborated by “[a]ny other evidence tending to support the reliability of the previous statements” (Family Ct Act § 1046 [a] [vi]; see Matter of Nicole V., 71 NY2d 112, 118 [1987]). While repetition of an accusation does not corroborate a child’s prior statement (see Matter of Christina F., 74 NY2d 532, 536 [1989]; Matter of Nicole V., 71 NY2d at 123), here, testimony and pictures of bruising corroborated some of the children’s statements. Cross statements of each child also corroborated the statements of the other children (see Matter of Nicole V., 71 NY2d at 124; Matter of Akia KK., 282 AD2d 839, 840 [2001]). Although some of the hearsay statements may not have been sufficiently corroborated, overall the children’s out-of-court statements fell within the hearsay exception and were properly considered by the court.
Considering the children’s statements along with all of the other evidence, Family Court did not err in granting the father sole custody. Modification of an existing custody arrangement is[*1322] appropriate where the petitioner establishes by a preponderance of the evidence that there has been a change in circumstances and that modification is necessary to ensure the best interests of the children (see Matter of Robert GG. v Kathleen HH., 273 AD2d 713, 715 [2000]; Matter of Smith v Kalman, 235 AD2d 848, 849 [1997]; see also Matter of Tropea v Tropea, 87 NY2d 727, 741 [1996]). The court’s determinations in this regard are entitled to great deference (see Matter of Mabie v O’Dell, 48 AD3d 988, 989 [2008]; Matter of Storch v Storch, 282 AD2d 845, 846 [2001], lv denied 96 NY2d 718 [2001]). Where, as here, the mother’s contentions are mainly attacks on the father’s veracity, we defer to Family Court’s opportunity to assess the witnesses and evaluate their credibility (see Matter of Anson v Anson, 20 AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]).
It is undisputed that the joint custody order was not appropriate as the parties did not communicate and rarely attempted to. Family Court frankly acknowledged that both parties exhibited some troubling behaviors, resulting in the court issuing orders of protection and requiring both parties to engage in certain services. Although the father had a seizure disorder which he had not always kept under control, his testimony—which was accepted by the court—established that he was currently seeking medical treatment, regularly took his medication, ceased driving and had a plan in place in case he had a seizure. Testimony of the father and school personnel showed that he kept in touch with the school and was supportive of the children’s education. While the mother had also been involved with their education and medical issues, the evidence supports the court’s findings that she was hostile, argumentative, and physically and verbally abused the children. The mother moved several times, obtaining a new address, phone number and enrolling the children in a new school district, without informing the father. One of these moves was made in direct contravention of a court order. Through these actions, she interfered with the father’s visitation and disrupted the continuity of the children’s education and counseling. During the pendency of the hearing, while the children were temporarily placed with the father, their hygiene and behavior at school improved. Under the circumstances, where each parent had some parenting deficiencies and did not communicate well with the other parent, we cannot say that the court abused its discretion in granting sole custody to the father.
The record supports Family Court’s determination that the mother willfully violated one prior order, not two. A willful[*1323] violation of a Family Court order must be established by clear and convincing evidence (see Matter of Blaize F., 48 AD3d 1007, 1008 [2008]). The mother’s own testimony established that she prevented the father from exercising his visitation on more than one occasion, moved and scheduled an eye appointment for the children both without notifying him. These actions constituted violations of the September 2005 custody order. Whether these violations were willful distills to a credibility determination; we decline to disturb the court’s findings in that regard (see id. at 1009). While the record indicates that the mother may have violated the June 2006 order of protection, there was no evidence that she did so on the dates listed in the father’s violation petition. Accordingly, we uphold the court’s determination that the mother willfully violated the September 2005 order but reverse the finding concerning the June 2006 order. Because the court suspended the sanction of 15 days of incarceration, we need not remit.
Finally, we reject, as completely baseless, the mother’s allegations that Family Court exhibited gender bias against her (see Anonymous v Anonymous, 287 AD2d 306 [2001], lv denied 97 NY2d 611 [2002]).
Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order entered March 30, 2007 with respect to custody and visitation is affirmed, without costs.
Ordered that the order entered March 30, 2007 finding petitioner in willful violation of prior orders of the Family Court of St. Lawrence County is modified, on the facts, without costs, by reversing so much thereof as found petitioner in willful violation of the June 2006 order of protection, and, as so modified, affirmed.