G Cite
cited 2× by 2 distinct cases ·
…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 ct. act 1046(a)(vi)
⚠ not in text
cited 2× by 2 distinct cases, last quoted 2009 ·
…continued deterioration in the parties' relationship can be a significant change in circumstances justifying a modification to sole custody
at p. 985
⚠ not in text
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004
2015
2026
Top citers, strongest first. 47 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
Matter of Sarah QQ. v. Raymond PP.
Although hearsay is generally not permitted, "[t]his Court has carved out 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 Ct Act § 1046 (a) (vi)" ( Matter of Rosario WW. v Ellen WW. , 309 AD2d 984, 987 [3d Dept 2003]; see Matter of Cassidy S. v Bryan T. , 180 AD3d 1171, 1173 [3d Dept 2020]).
cited
Cited as authority (rule)
Matter of Thomas FF. v. Jennifer GG.
This evidence provides a sound and substantial basis in the record to support Family Court’s determination (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Matter of Hamilton v. Anderson
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 706 [2009]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]).
discussed
Cited as authority (rule)
Matter of Kylene FF. v. Thomas EE.
However, this Court defers to Family Court’s credibility assessments (see Matter of Kimberly CC. v Gerry CC., 86 AJ)3d 728, 730-731 [2011]) and, here, we find a sound and substantial basis in the record for the determination that it was in the children’s best interests to award sole custody to the mother and to limit the father’s parenting time to weekly supervised visits (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986-987 [2003] ). 2 Family Court did not err in denying the father’s motion for renewal, a rehearing and recusal.
discussed
Cited as authority (rule)
Matter of Tina X. v. John X.
The temporary order granting the father custody of the children pending a final disposition was not a final order and, as such, it is not appealable as of right (see Family Ct Act § 1112 [a]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985 [2003]; Matter of Crooks v Smith, 260 AD2d 804, 804 [1999]; Matter of Bridges v Hertica, 234 AD2d 862, 864 [1996]).
discussed
Cited as authority (rule)
Heather B. v. Daniel B.
A child’s out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence (see Matter of Bartlett v Jackson, 47 AD3d 1076, 1077 [2008], lv denied 10 NY3d 707 [2008]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]).
discussed
Cited as authority (rule)
Heather B. v. Daniel B.
A child’s out-of-court statements are admissible in a custody dispute if the statements relate to abuse or neglect, provided that such statements are corroborated by other evidence (see Matter of Bartlett v Jackson, 47 AD3d 1076, 1077 [2008], lv denied 10 NY3d 707 [2008]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]).
discussed
Cited as authority (rule)
Youngs v. Olsen
Upon a thorough review of the record before us and deferring to Family Court’s credibility determinations, there is a sound and substantial basis in the record to support the conclusion that the continued deterioration of the parties’ relationship, the failure of the parties to agree on nearly every aspect of the child’s life and the parties’ practice of disregarding the child’s best interests in order to further their personal antagonism constitute a sufficient change in circumstances so as to warrant the modification (see Matter of Carella v Ferrara, 9 AD3d 605, 606 [2004]; Matter …
discussed
Cited as authority (rule)
Youngs v. Olsen
Upon a thorough review of the record before us and deferring to Family Court’s credibility determinations, there is a sound and substantial basis in the record to support the conclusion that the continued deterioration of the parties’ relationship, the failure of the parties to agree on nearly every aspect of the child’s life and the parties’ practice of disregarding the child’s best interests in order to further their personal antagonism constitute a sufficient change in circumstances so as to warrant the modification (see Matter of Carella v Ferrara, 9 AD3d 605, 606 [2004]; Matter …
discussed
Cited as authority (rule)
Blerim M. v. Racquel M.
Moreover, the mother has demonstrated a complete unwillingness to fulfill her obligations under the prior joint custody order, and, thus, joint custody is inappropriate (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986 [2003]).
cited
Cited as authority (rule)
Aquino v. Antongiorgi
Stephen S., 64 NY2d 946, 947-948 [1985]; Matter of Lovitch v Lovitch, 64 AD3d 710, 712 [2009]; Zafran v Zafran, 28 AD3d 753, 755 [2006]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985 [2003]).
discussed
Cited as authority (rule)
Jodi S. v. Jason T.
Moreover, Family Court dismissed the mother’s violation petition and we find no record evidence to support a finding of aggravating circumstances (see Matter of Julie G. v Yu-Jen G., 81 AD3d at 1083 ; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]; compare Matter of Guernsey v Guernsey, 37 AD3d at 990 ; Matter of Wright v Wright, 4 AD3d 683, 685 [2004]; Matter of Flascher v Flascher, 298 AD2d 393 [2002]).
discussed
Cited as authority (rule)
Suzanne EE. v. Christopher FF.
As with its assessment of the credibility of the witnesses’ testimony, “Family Court’s determination regarding whether a party’s visitation should be supervised” is entitled to deference (Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986 [2003]).
discussed
Cited as authority (rule)
Nikki O. v. William N.
Further, “[c]ontinued deterioration in the [parties’] relationship can be a significant change in circumstances justifying a modification to sole custody” (Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]; see Posporelis v Posporelis, 41 AD3d 986, 989 [2007]; Matter of Smith v Miller, 4 AD3d 697, 698 [2004]; Matter of Harper v Jones, 292 AD2d 649, 650 [2002]).
discussed
Cited as authority (rule)
Francis v. Cox
Here, the Family Court properly determined that joint custody of the child was no longer a viable option due to the history of animosity between the parties (see Braiman v Braiman, 44 NY2d 584 , 587 [1978]; Matter of Tavarez v Musse, 31 AD3d 458 [2006]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985 [2003]; Palumbo v Palumbo, 292 AD2d 358, 360 [2002]).
discussed
Cited as authority (rule)
Clupper v. Clupper
Considering the parties’ demonstrated difficulties in communication and disagreement over important issues involved in raising the children, the court reasonably determined that joint custody was not feasible (cf. Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1101 [2007]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Benjamin v. Benjamin
Record evidence supports the parties’ allegations that joint custody is inappropriate, as the parties do not communicate well nor work together to parent the children (see Matter of Maliha v Maliha, 13 AD3d 1032, 1033 [2004]; Matter of Rosario WW v Ellen WW., 309 AD2d 984, 985 [2003]).
discussed
Cited as authority (rule)
Bartlett v. Jackson
In custody proceedings involving allegations of abuse or neglect, hearsay statements of the child pertinent to those allegations may be admitted and considered so long as they are corroborated by other evidence (see Matter of Bernthon v Mattioli, 34 AD3d 1165, 1165-1166 [2006]; Matter of Rosario WW., v Ellen WW., 309 AD2d 984, 987 [2003]; Matter of Baxter v Perico, 288 AD2d 717, 717 [2001]).
discussed
Cited as authority (rule)
Posporelis v. Posporelis
Notably, a “[c]ontinued deterioration in the [parties’] relationship can be a significant change in circumstances justifying a modification to sole custody” (Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]; see Matter of Adams v Franklin, 9 AD3d 544, 545 [2004]; Matter of Harper v Jones, 292 AD2d 649, 650 [2002]).
discussed
Cited as authority (rule)
Fielding v. Fielding
As the children’s uncorroborated statements do not involve allegations of abuse or neglect, they are inadmissible in the context of this custody proceeding (compare Matter of Bernthon v Mattioli, 34 AD3d 1165, 1165-1166 [2006]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]).
discussed
Cited as authority (rule)
Bernthon v. Mattioli
As Family Court correctly noted, we apply the hearsay exception stated in Family Ct Act § 1046 (a) (vi) in custody proceedings involving allegations of abuse or neglect of a child (see Matter of Heater v Heater, 15 AD3d 804, 805 [2005]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]; Matter of Baxter v Perico, 288 AD2d 717, 717 [2001]).
discussed
Cited as authority (rule)
Pecore v. Pecore
Particularly relevant here, continued deterioration in the parties’ relationship to the point that it “is so acrimonious that it creates an inability to cooperate in raising” the child can constitute a substantial change justifying modification to sole custody (Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]; see Eschbach v Eschbach, supra at 172).
discussed
Cited as authority (rule)
Mateo v. Tuttle
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 Ct Act § 1046 (a) (vi)” (Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]), where, as here, the statements are corroborated (see Matter of Stacey L.B. v Kimberly R.L., 12 AD3d 1124, 1125 [2004], lv denied 4 NY3d 704 [2005]; Kantrowitz v LaRoche, 5 AD3d 101 [2004]; Matter of Albert G. v Denise B., 181 AD2d 732, 733 [1992]).
cited
Cited as authority (rule)
Dunaway v. Espinoza
As the trial court is in the best position to assess credibility, we give due deference to its findings (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986 [2003]).
discussed
Cited as authority (rule)
Mehaffy v. Mehaffy
The record reflects pronounced mistrust and acrimony, and that these adults are embattled (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]; Matter of Murray v McLean, supra at 900).
discussed
Cited as authority (rule)
Matter of Jacqueline B. v. Peter K.
Footnote 3: Matter of Stacey L.B. v Kimberly R.L. , 12 AD3d 1124, 1125 (4th Dept 2004), lv denied 4 NY3d 704 (2005) (after joint custody order was entered, the mother "abused or neglected the child and entered into two romantic relationships involving issues of domestic violence" and the Court admitted the statements of the child because of the allegations of abuse and neglect); Matter of Rosario WW. v Ellen WW. , 309 AD2d 984, 987 (3d Dept 2003) (court admitted the mother's testimony "revealing statements of the children as to conduct by the father that would constitute acts of abuse and negl…
discussed
Cited as authority (rule)
Jacqueline B. v. Peter K.
Matter of Stacey L.B. v Kimberly R.L., 12 AD3d 1124, 1125 (4th Dept 2004), lv denied 4 NY3d 704 (2005) (after joint custody order was entered, the mother “abused or neglected the child and entered into two romantic relationships involving issues of domestic violence” and the Court admitted the statements of the child because of the allegations of abuse and neglect); Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 (3d Dept 2003) (court admitted the mother’s testimony “revealing statements of the children as to conduct by the father that would constitute acts of abuse and neglect”…
cited
Cited as authority (rule)
Conroy v. Elreedy-Conroy
Inasmuch as respondent has completed the sentence imposed, the appeal must be dismissed as moot (see Matter of Sabrina O., 309 AD2d 984, 984 [2003]; Matter of Lane v Lane, 216 AD2d 641, 642 [1995]).
discussed
Cited as authority (rule)
Maliha v. Maliha
While both parents were appropriate and important in the child’s life, sole custody was necessary because the parties could not effectively communicate or cooperate on any issues regarding their child (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Loren B. v. Heather A.
In this custody case raising allegations of abuse, we apply Family Ct Act article 10 evidentiary rules regarding corroboration (see Family Ct Act § 1046 [a] [vi]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]).
discussed
Cited as authority (rule)
Kaczor v. Kaczor
Thus, we agree with Family Court that their relationship was so acrimonious that joint custody was no longer feasible (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985 [2003]; Matter of Markey v Bederian, 274 AD2d 816 , 817 [2000]).
discussed
Cited as authority (rule)
Hagans v. Harden
Giving due deference to Family Court’s credibility determinations, we find no abuse of the court’s discretion in its holding that the child’s poor grades and disciplinary problems in school, the mother’s chronic inability to control her anger and the mother’s infliction of inappropriate physical discipline when she “did not know what else to do” constituted a substantial change in circumstances warranting a modification of the parties’ custody arrangement (see Matter of Wood v Wood, 8 AD3d 767, 768-769 [2004]; Matter of Smith v Miller, 4 AD3d 697, 698-699 [2004]; Matter of Rosa…
discussed
Cited as authority (rule)
Stacey L.B. v. Kimberly R.L.
In any event, such statements are properly admitted where, as here, there are allegations of abuse or neglect and the statements are corroborated (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]; Peter S., 190 AD2d at 1039 ; see also Matter of Nilda S. v Dawn K., 302 AD2d 237, 238 [2003], lv denied 100 NY2d 512 [2003]).
discussed
Cited as authority (rule)
Van Zandt v. Sauers
Joint custody is not feasible where the parties have an acrimonious relationship or refuse to communicate with each other in order to effectively coparent their child (see Matter of Smith v Miller, 4 AD3d 697, 698 [2004]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Carella v. Ferrara
Were we to consider the merits, giving due deference to Family Court’s ability to make credibility determinations, we find that the court did not abuse its discre tion in holding that the deterioration in the parties’ relationship constituted a substantial change in circumstances indicating that a modification terminating joint custody would be in the child’s best interests, and that the father was the more appropriate custodian (see Matter of Smith v Miller, 4 AD3d 697, 698-699 [2004]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Adams v. Franklin
Notably, the continued deterioration in the parties’ relationship may constitute a change in circumstances justifying a modification (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Hares v. Walker
A joint custody arrangement may be modified to a sole custody arrangement where, as here, the parents are no longer able to “work together in a cooperative fashion for the good of their children” (Matter of Jemmott v Jemmott, 249 AD2d 838, 839 [1998], lv denied 92 NY2d 809 [1998]; see Matter of Smith v Miller, 4 AD3d 697 [2004]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
cited
Cited as authority (rule)
Wood v. Wood
Clearly, Family Court found both the boyfriend and the mother to have no credibility and we give deference to that conclusion (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986 [2003]).
cited
Cited as authority (rule)
People v. Mathias
Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]).
discussed
Cited as authority (rule)
Smith v. Miller
The continued deterioration of the parties’ relationship, as evidenced by the numerous intentional violations of the visitation portions of the prior order, constituted a significant change in circumstances justifying a modification to sole custody (see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]).
discussed
Cited as authority (rule)
Wright v. Wright
Accordingly, the order of protection should be modified to reflect that finding in compliance with Family Ct Act § 842 (see Matter of Flascher v Flascher, 298 AD2d 393 [2002]; Matter of Rice v Rice, 280 AD2d 677 [2001]; cf. Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 987 [2003]; Matter of Baker v Ratoon, 251 AD2d 921 [1998]).
discussed
Cited "see"
In re Ice S.
Contrary to the Law Guardian’s contention, there is no evidence that supervised telephone contact between the incarcerated father and the subject children “would be inimical to the [children’s] welfare” (Matter of Anaya v Hundley, 12 AD3d 594, 596 [2004]; see Matter of Rosario WW. v Ellen WW., 309 AD2d 984 [2003]).
discussed
Cited "see"
Grandin v. Grandin
It is well settled that “[w]here a voluntary agreement of joint custody is entered into, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the child[ ]” (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999], lv denied 94 NY2d 790 [1999]; see Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985-986 [2003]; Matter of Harper v Jones, 292 AD2d 649, 650 [2002]).
discussed
Cited "see"
Sales v. Brozzo
We have held that a commitment of imprisonment pursuant to Family Ct Act article 4 is “in the nature of punishment for civil contempt and completion of the jail term for a civil contempt renders the matter moot” (Matter of Madison County Support Collection Unit v Drennan, 156 AD2d 883 , 883 [1989] [citation omitted]; see Matter of Sabrina O., 309 AD2d 984 , 984 [2003]; Matter of Lane v Lane, 216 AD2d 641, 642 [1995]).
discussed
Cited "see, e.g."
Flamio v. Flower
Family Court found, based on the record, that given petitioner’s vexatious nature and irrationality, it would not be in the best interests of the child for petitioner to have access to her medical or educational records (see Matter of Nicole VV., 296 AD2d 608, 612-613 [2002], lv denied 98 NY2d 616 [2002]; see also Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986 [2003]).
discussed
Cited "see, e.g."
Folsom v. Folsom
Petitioner’s disregard of the court’s instructions to avoid negative terms in his letters warranted the clarification of the Law Guardian’s obligation in supervising petitioner’s correspondence to ensure that the best interests of the children would be advanced (see Matter of Simpson v Simrell, 296 AD2d 621, 621-622 [2002]; see also Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 986 [2003]).
discussed
Cited "see, e.g."
Vallone v. Vallone
Memorandum: In appeal No. 1, respondent appeals from an order revoking the suspension of a prior order committing him to jail for six months for failure to pay child support arrears and, in appeal No. 2, he appeals from an “Order of Commitment.” Because respondent has completed serving his jail term, the appeals are moot (see Matter of Sales v Brozzo, 3 AD3d 807 [2004]; Matter of Lane v Lane, 216 AD2d 641, 642 [1995]; see also Matter of Sabrina O., 309 AD2d 984 [2003]).
Retrieving the full opinion text from the archive…
In the Matter of Sabrina O., a Child Alleged to be Neglected. Franklin County Department of Social Services, Respondent James O.
Appellate Division of the Supreme Court of the State of New York.
Oct 23, 2003.
Spain.
Cited by 3 opinions | Published
Spain, J.
Appeal from an order of the Family Court of Franklin County (Main, Jr., J.), entered November 9, 2001, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to hold respondent in violation of a prior court order, and revoked respondent’s suspended jail sentence.
In March 2001, upon a finding that respondent had willfully violated an order of protection, respondent was sentenced to 180 days in jail; the sentence was suspended, conditioned upon respondent’s strict compliance with certain orders of protection and supervision. Petitioner commenced this violation proceeding to lift the suspension of respondent’s sentence. Based upon its finding that respondent missed two mental health appointments, Family Court granted the petition. Respondent appeals.
Respondent did not appeal from Family Court’s March 2001 suspended sentence supervision order, but only its order of commitment lifting the suspension of incarceration. Inasmuch as respondent has completed the sentence imposed by Family Court, the appeal must be dismissed as moot (see Matter of Lane v Lane, 216 AD2d 641, 642 [1995]; Matter of Wright v Wright, 205 AD2d 889, 892 [1994]; Matter of Madison County Support Collection Unit v Drennan, 156 AD2d 883 [1989]).
Crew III, J.P., Carpinello, Rose and Kane, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.