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Case Law Database

Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

Cole v. Nofri

Justice Martoche dissents from an order concerning a child custody modification. The mother sought to change the existing custody arrangement, established in 2005, which granted primary physical custody to the father. Her petitions in 2006 and 2011 alleged the child suffered emotional difficulties and expressed a strong desire to live with her. Family Court dismissed the 2011 petition, concluding the mother failed to show a sufficient change in circumstances and that the child lacked the maturity to make a wise custody choice. Martoche, J. argued that the lower court's dismissal should be affirmed, emphasizing the importance of stability in custody arrangements, the child's history of anxiety, and the absence of expert testimony to warrant a modification, thereby upholding the original determination that it was in the child's best interest to reside with the father.

Child CustodyChild's PreferenceChange in CircumstancesParental RightsBest Interests of the ChildFamily LawDissenting OpinionPsychological EvaluationAdjustment DisorderEmotional Distress
References
6
Case No. MISSING
Regular Panel Decision
Aug 29, 2002

Kemp v. Kemp

This case involves an appeal from an order of the Family Court of Clinton County concerning the modification of a prior custody order for two sons. The parties, who divorced in 1999, initially had a separation agreement granting joint legal custody with the respondent having primary physical custody. However, due to the respondent's subsequent criminal convictions, probation violation, and incarceration in January 2002, the petitioner gained actual physical custody of the children. The Family Court subsequently awarded sole legal and physical custody to the petitioner, citing several factors including the respondent's incarceration, lack of credibility, failure to address self-destructive behavior, and the stable home environment provided by the petitioner. The appellate court affirmed the Family Court's decision, finding it to be based on a sound and substantial record, and rejected the respondent's contentions regarding joint custody and ineffective assistance of counsel.

Custody ModificationFamily LawBest Interests of the ChildParental FitnessChange in CircumstancesIncarcerationMental Health EvaluationCredibility AssessmentJoint CustodySole Custody
References
11
Case No. MISSING
Regular Panel Decision

Norwood v. Capone

This case involves an appeal from an order of the Otsego County Family Court which modified a prior custody order. The petitioner and respondent, divorced parents of two sons with special needs, Christopher and Anthony, were initially granted joint custody with physical custody to the respondent. The petitioner sought to modify this arrangement due to concerns about the respondent's care for the children, particularly regarding Anthony's behavioral issues and alleged physical violence by the respondent. A family offense petition was also filed. The Family Court transferred physical custody to the petitioner and allowed the children to relocate to Kentucky, while maintaining joint custody. The family offense petition was dismissed. On appeal, the court affirmed the Family Court's decision, finding that the change in circumstances and the children's best interests supported the modification, particularly for Anthony, as Christopher had aged out of Family Court jurisdiction. The appellate court upheld the Family Court's assessment of parental fitness and the decision to allow relocation.

Custody ModificationFamily OffenseChild CustodySpecial Needs ChildrenRelocationParental FitnessBest Interests of the ChildDomestic ViolenceTemporary Order of ProtectionFamily Court Appeal
References
9
Case No. MISSING
Regular Panel Decision
Dec 15, 1993

Manchester v. Whitbeck

This case involves an appeal from a Family Court order in Fulton County, entered December 15, 1993, which granted the respondent's application for a modification of a prior custody and visitation order, awarding sole custody to the respondent. The appellate court reviewed the Family Court's findings, which alleged the petitioner's failure to provide for the child's minimal needs and demonstrated little parenting understanding. However, the appellate court found no support in the record for these findings, noting that some evidence was misinterpreted or explained by mediated agreements. It concluded that a change in custody was not warranted, as there was no indication it would substantially enhance the child’s welfare and the custodial parent was not shown to be unfit. Consequently, the order was modified by reversing the award of sole custody to the respondent and instead awarding sole custody to the petitioner, with liberal visitation to the respondent, and the matter was remitted to the Family Court to set an appropriate visitation schedule.

Child CustodyFamily LawCustody ModificationBest Interest of the ChildParental FitnessJoint CustodyAppellate ReviewVisitation RightsFamily Court ActJudicial Review
References
4
Case No. MISSING
Regular Panel Decision

Chery v. Richardson

The father appealed the Family Court's denial of his petition to modify a 2004 custody order, seeking sole custody of his daughter. The appellate court affirmed the Family Court's decision, finding that there was no sufficient change in circumstances to warrant a custody modification. The court noted that while the mother had prior parenting lapses, these issues, including hygiene and school attendance, had been ameliorated. The decision also considered the child's primary bond with her mother and half-siblings, the social worker's testimony, and the child's and her attorney's preference for custody to remain with the mother. Joint custody was deemed unfeasible due to the parents' inability to communicate.

Child CustodyCustody ModificationBest Interests of the ChildChange in CircumstancesParental FitnessChild PreferenceSibling RelationshipsFamily Court AppealAppellate ReviewCredibility Assessment
References
15
Case No. MISSING
Regular Panel Decision

Von Dwingelo v. Dwingelo

This case involves an appeal from an order of the Family Court of Clinton County, which granted the petitioner's application to modify a prior custody order. The parties, married in 1991, had a daughter, Crystal, born in 1992, and initially shared joint custody with the respondent having physical custody. In 1998, the petitioner sought physical custody, and the Family Court ruled in his favor, prompting the respondent's appeal. The appellate court affirmed the modification, citing substantial changes in circumstances over four years that warranted a change to ensure Crystal's best interests. The respondent's unstable lifestyle, including frequent moves, a welfare fraud conviction, and disregard for visitation, contrasted with the petitioner's established stability and efforts to maintain a relationship with his daughter.

custody modificationchild custodybest interest of the childparental fitnessfamily courtvisitation rightsappellate reviewparental stabilityresidential changeswelfare fraud
References
6
Case No. MISSING
Regular Panel Decision

Kesterson v. Varner

Bruce Varner (Father) appealed the trial court's dismissal of his Petition to Modify Custody of his son, J.V. The original custody was awarded to Judy Kesterson (Mother) in a 1990 divorce. Varner sought modification in 2002, citing J.V.'s serious mental health issues, including ADHD, Bipolar Disorder, and Oppositional Defiant Disorder, as a material change in circumstances. The trial court dismissed the petition, finding Varner failed to prove a material change in circumstances or that a custody change was in the child's best interest. The appellate court affirmed the trial court's decision, concluding that while a material change in circumstances was established due to J.V.'s mental health, Varner did not meet the burden of proof that changing custody to him would be in J.V.'s best interest, especially given expert testimony on J.V.'s manipulative behavior and the guardian ad litem's recommendation for J.V. to remain with the mother. The court also affirmed the allocation of attorney's fees and guardian ad litem fees to Varner.

Custody ModificationChild Mental HealthParental DiscretionBest Interest of ChildGuardian Ad Litem FeesAttorney Fees AwardAppellate ReviewTrial Court DismissalPsychiatric DiagnosisAttention Deficit Hyperactivity Disorder
References
29
Case No. MISSING
Regular Panel Decision

Lewis v. Tomeo

The mother initiated proceedings to modify a 2004 Pennsylvania custody order, seeking primary physical custody of her daughter. The Family Court granted the mother's petition and dismissed the father's cross-petition, awarding primary physical custody to the mother, which the father then appealed. The appellate court reviewed whether a change in circumstances warranted modification and if relocation with the mother to North Carolina was in the child's best interests. The court found a sound and substantial basis for the Family Court's decision, citing issues with the father's care and the mother's stable home environment. It also concluded that the father was not denied effective assistance of counsel. The Family Court's order was affirmed.

CustodyParental RelocationChild's Best InterestChange in CircumstancesFamily LawAppellate ReviewParental FitnessEffective Assistance of CounselVisitation RightsNew York Family Court
References
23
Case No. MISSING
Regular Panel Decision

Chant v. Filippelli

The petitioner appealed an order from the Family Court of Warren County, which had dismissed their application to modify a prior custody order regarding their daughter, born in 1991. The Family Court had found no substantial change in circumstances to warrant a modification, deeming it in the child's best interest to remain in the respondent's custody. The appellate court affirmed this decision, deferring to the Family Court's assessment of testimony and witness credibility. The court noted the child's positive development under the existing custody arrangement and rejected the petitioner's arguments concerning a school counselor's testimony versus a psychiatric social worker's recommendation, as well as the child's separation from a half-sibling.

CustodyVisitationChild's Best InterestFamily LawCustody ModificationAppellate ReviewParental FitnessChange of CircumstancesWarren County
References
9
Case No. MISSING
Regular Panel Decision

Barnhart v. Coles

This case involves appeals concerning a child custody modification and a denied motion for renewal. The Family Court granted the petitioner's application to modify a prior custody order, transferring sole custody of their son, Joshua, from the respondent to the petitioner. The court found that the respondent engaged in deceit and fabrication to undermine the petitioner's relationship with the child, including falsely alleging abuse. Additionally, the respondent's history of alcohol abuse and the child's negative behavioral changes when contact with the petitioner was curtailed were cited as factors. The appellate court affirmed the Family Court's decision, emphasizing deference to its factual findings and credibility assessments, and upheld the denial of the respondent's claim of ineffective assistance of counsel.

custody disputevisitation rightsparental alienationchild's best interestcredibility assessmentalcohol abuseineffective assistance of counselFamily Court proceedingsappellate reviewcustody modification
References
3
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