In March 2016, father began to suspect mother was using drugs and sought an ex parte order granting him temporary <mask> of the girls. Mother acknowledged she was actively using methamphetamine and agreed to a stipulated custody order giving father sole custody on a temporary basis. Under that order, which was issued in April 2016 and titled "stipulation and order for temporary custody and visitation," mother was allowed visitation "upon mutual agreement between the parties." According to father, mother tried to arrange visits or at least speak with the girls three times in the following month, but he refused based on his family therapist's advice that allowing mother to contact or visit would be stressful for the girls. A few weeks later, in mid-May, mother left a voice message for the girls on father's phone and texted father asking him to play it for them. Father again refused, responding that the therapist did not want the girls to listen to her message "because you are trying to guilt the girls into calling." At trial, mother said she stopped trying to contact or see the girls after that because she felt she was "hitting a wall with [father]." She didn't want fights with him to be a "trigger for her addictions" so she decided to focus on getting healthy and fighting for custody in family court.


On appeal, Daniel first argues that the circuit court erred by failing to render a judgment consistent with our holdings in Montez I and Montez II . He concedes that the circuit court technically followed the mandates when the court awarded <mask> to Consuela; however, he argues that the order violates the spirit of the mandates because the court maintained the previous visitation schedule, and in Montez I , we found that arrangement to be against the best interest of the children.


We find no basis for disturbing the trial court’s award of <mask> of the parties’ minor child to the father. It is well settled that, in adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see, Friederwitzer v Friederwitzer, 55 NY2d 89). *566Moreover, the court’s determination depends to a great extent upon its assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parents. Therefore, the findings of the trial court must be treated with great respect unless they lack a sound and substantial basis in the record (see, Matter of Carl J B. v Dorothy T., 186 AD2d 736; see also, Klat v Klat, 176 AD2d 922; Leistner v Leistner, 137 AD2d 499).


Finally, the wife seeks a change from joint to <mask>. She must prove a “sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child’s best interests.” (Matter of Dorsa v Dorsa, 90 AD3d 1046, 1046 [2d Dept 2011].) There is no evidence to support such a change; the husband has expressed his desire to see his children consistent with the Singapore judgment of divorce. The husband’s lifestyle has not changed and there is no such allegation. The only allegation of any change is that the husband, after being told by his ex-wife that she would not allow the children to stay overnight with him—even though the judgment of divorce expressly permitted such overnights—told his wife that he would only negotiate through his attorney. The husband’s resort to legal intervention—when the wife directly refused to comply with the judgment—does not equate with a substantial change in circumstances sufficient to justify a change in custody. There is also no evidence that these parents are so antagonistic that they are unable to communicate or cooperate on matters concerning the children. (Matter of Flores v Mark, 107 AD3d 796 [2d Dept 2013].) The mother and father have communicated during the father’s prior visitation. The mother acknowledges that prior to April 2014, she communicated with the father when he came to Rochester. The communication broke down when the mother declined to permit the father to have the access set forth in the interim judgment. In this court’s view, the father’s assertion of his rights under the interim judgment does not constitute a change in circumstances sufficient to change this case from joint custody to sole custody.


Here, Bianka's parentage petition indicates she is seeking a <mask> order as well as an order containing SIJ findings. Although the petition cites the SIJ statute as well as Code of Civil Procedure section 155, the petition does not indicate Bianka seeks an order specifically finding that Jorge abandoned her and/or committed acts of domestic violence against Gladys. Consistent with the due process principles discussed above, we hold that in a default proceeding under the UPA, a court may only issue an order containing SIJ findings regarding parental abuse, neglect, abandonment or other similar actions if those factual allegations were contained in the original petition or in a request for order served together with the summons and a copy of the petition. Only in such circumstances would a parent be on notice of the potential for a negative factual finding of abuse, neglect or abandonment.


Awarding <mask> of C.W. to his father in these circumstances was an abuse of discretion. After reunification has failed, a permanent plan has been selected and the focus of proceedings has shifted from reunifying parent with child in favor of providing the child with a permanent and stable home, it thwarts the entire point of our dependency scheme for a juvenile court to surrender a child back to such a parent, by relinquishing its jurisdiction and awarding that parent full and exclusive legal custody of the child. "It is a clear abuse of discretion to make findings that a minor is at risk in [a parent's] home, yet return the minor home and terminate supervision and dependency." ( In re I.G. (2014) 226 Cal.App.4th 380, 387, 171 Cal.Rptr.3d 867.) Doing so abrogates the court's statutory duty to protect every minor within its jurisdiction, wherever placed. (See id. at pp. 387-388, 171 Cal.Rptr.3d 867 [reversing order granting mother custody and terminating jurisdiction]; §§ 300, 300.2; cf. Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, 51 Cal.Rptr.3d 816 [abuse of discretion to permit adjudicated child sex abuser to return to family home subject to monitored visitation after finding substantial danger still exists]; see also, e.g., In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1333, 253 Cal.Rptr. 161 [juvenile court properly declined at section 366.3 review hearing to return child to parents who presented no evidence demonstrating any change in their "inability to recognize and admit the problems that required [their daughter's] removal from their home"].) Here, by sustaining the jurisdictional allegations, the juvenile court found early on in the proceedings that C.W. was at substantial risk in his father's care. Thereafter, no evidence was presented Rusty no longer posed a danger and there were warning signs of significant problems related to Rusty's unfitness as a parent. By awarding permanent custody to Rusty in these circumstances (if that was the intent), the juvenile court just ignored the risks it previously found existed.


In Sooy v Sooy (101 AD2d 287, affd sub nom. Matter of Louise E. S. v W. Stephen S., 64 NY2d 946) the Third Department determined that the Family Court did not abuse its *34discretion in awarding petitioner counsel fees in a custodial dispute (supra, 101 AD2d, at 291). Although that opinion does not recite the precise procedural history of the case, review of the record on appeal discloses that the Supreme Court judgment of divorce did not refer the custody issue to the Family Court (see, Domestic Relations Law § 251; Family Ct Act § 651 [a]), but rather, awarded joint custody and ordered "that either party upon application to an appropriate court, shall be entitled to a determination as to the <mask> of the child”. Thereafter an original petition was filed in Family Court for determination of custody and attorney’s fees were awarded in the course of that proceeding.


BACKGROUND A December 2018 decree dissolved the parties’ marriage. The court awarded the parties joint legal and physical cus- tody of their four children: two daughters born in 2003 and 2005, respectively, and two sons, born in 2004 and 2007, respectively. The court ordered Matthew to pay child support of $2,000 per month for four children, which would decrease by $500 a month each time a child was no longer eligible to receive support. A child support calculation was not attached to the decree. Within 8 months, both parties sought to modify the decree. They alleged a material change in circumstances with respect to custody and child support. Prior to trial, the parties resolved custody and parenting time issues. They agreed for Krystal to have <mask> of the parties’ two daughters. The district court conducted a trial concerning child support. It received into evidence the child support calculation used - 347 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345


We agree with respondent’s contention that the court failed *1033to make the necessary findings to justify a change of custody. However, we reject respondent’s further contention that the record is insufficient to justify the court’s conclusion that the best interests of the child require a change of the joint custodial arrangement to one of <mask> with petitioner. Where the record is sufficiently complete, we can make our own findings of fact in the interests of judicial economy and the well-being of the child (see, Matter of Milton v Dennis, 96 AD2d 628).


Petitioner contends that Family Court erred in failing to grant her request to change the custody arrangement for the parties’ three children from the joint custody originally agreed upon by the parties to <mask> with petitioner. Although a prior custody arrangement is not determinative of an application to change custody, it is a "weighty factor to consider” (Matter of Williams v Williams, 188 AD2d 906, 908). There must be a showing of a sufficient change in circumstances to establish a real need to effect a change to insure the best interests and welfare of the children (Matter of Haran-Buckner v Buckner, 188 AD2d 705, 706-707). Joint custody involves *848the sharing by the parents of responsibility for and control over the upbringing of their children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement (see, Matter of Frandsen v Frandsen, 190 AD2d 975, 976). Thus, no abuse of discretion will be found in a decision to terminate joint custody when the record indicates that the parties are antagonistic to each other and can no. longer successfully cooperate in carrying out the obligation imposed upon them by the joint custody arrangement (see, Matter of Schwartz v Schwartz, 144 AD2d 857, 858, lv denied 74 NY2d 604).


The stated policy of this State has long been established that custody of children should remain constant and stable. Where an award of <mask> has been made, it will not be changed unless there has been a showing of a substantial change in circumstances which adversely affects the children and makes a change of custody necessary in their best interest, or unless it is shown that the custodial parent is unfit. (Schuler v Schuler, 29 AD2d 669.) It is also clear that the burden of establishing the substantial change of circumstances rests upon the party seeking the modification. (Dintruff v McGreevey, 42 AD2d 809, affd 34 NY2d 887.) The same standards must be applied to an award of joint custody. To hold otherwise, would be to decree that an award of joint custody is actually no award at all, for it could be changed at the whim of either parent.


Leo J. Fallon, J. Before the court is an application by defendants pursuant to CPLR 3211 (a) (7) for an order dismissing this action by reason of its failure to state a cause of action. The facts as they pertain to this motion are as follows: The plaintiff in this *280action was divorced by a judgment of this court filed December 28, 1977 which inter alla awarded joint custody of plaintiffs daughter. The issue of the daughter’s custody came back before the court in the form of a postjudgment application during which the Honorable George F. Francis ordered a forensic examination to aid the court in its determination of that motion. Pursuant to the court’s directive of June 7, 1985, the parties did in fact submit to certain counseling before defendant Kenneth Condrell, the psychologist selected by the court. Ultimately, defendant made certain recommendations to the court relative to custody of the child which are said to have been relied upon by the court in awarding <mask> of the child to plaintiffs former husband.


The award of <mask> of the children to the mother has a sound and substantial basis (see Matter of Salena S. v Ahmad G., 152 AD3d 162 [1st Dept 2017]). Upon consideration of the relevant factors, the court properly concluded that the children's best interests would be served by remaining with the mother, who had acted as their primary caretaker since commencement of the action in 2014 and made all major decisions pertaining to the children's education, health, and care (see generally Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]). Contrary to the father's contention, the court-appointed forensic evaluator's opinion that the father should have "significant amounts of time" with the children was not determinative of the parties' dispute. We note that the expert's conclusions were issued over three years before the court's custody order (see Matter of Dawn S. v Michael L. Y., 184 AD3d 462, 463 [1st Dept 2020]). After the forensic expert's report was issued, defendant's conduct prompted the court to order that his access with the children be supervised, and he was held in contempt and incarcerated for his failure to comply with his pendente lite support obligations.


In a disposition report filed in November 2015, the Cabinet stated that the child remained in the temporary custody of the mother, who was ensuring his needs were met, and was attending kindergarten. He was in counseling for behavioral issues. The father was incarcerated in the Nelson County jail for probation violations and would not be eligible for parole until April 2016. He had admitted to being under the influence of drugs during the 2015 incident. The Cabinet recommended that the mother be granted <mask> of the child and noted that the father could not complete any services or work on his case plan because he was incarcerated. The Cabinet recommended that the court put orders in place for the father once he was released and included a list of such recommendations.


2. After the divorce, the parties interacted seamlessly and frequently regarding the children and the children's needs. 3. Dr. Schreckhise married in July of 2014. In August of 2014, Dr. Schreckhise began implementing a series of rules about how the parties would communicate, including limited communications in person and preferably only when spouses were available; requiring communication by email unless it was an emergency or time-sensitive, with spouses copied on the communication; and limiting interaction at the children's events to a "hi" or a nod. 4. In the summer of 2015, Dr. Schreckhise expanded the rules to add that Dr. Parry was not to talk to him at work,[1 ] was not to come to his house, was not to walk on the street in front of his house on North Willow Avenue or his wife's house on Washington Street,[2 ] and that they were to have separate parent-teacher conferences for each child. 5. Dr. Schreckhise testified that on the advice of his marriage counselor, he requested Dr. Parry not be present for the children's medical appointments if they fell during his visitation. 6. Dr. Schreckhise refused to inform Dr. Parry about the minor children's overnight childcare providers when requested by Dr. Parry. 7. In July of 2016, Dr. Schreckhise and his wife, Suzannah Schreckhise, became concerned about Dr. Schreckhise's twenty-three-year-old step-son, David Garrison. *785Mrs. Schreckhise filed an emergency petition for appointment of temporary and permanent guardianship of the person and estate of David. P. Garrison. The affidavit of David Garrison's father, included with Ms. Schreckhise's Petition, noted that David Garrison "since turning 18, has had multiple offenses evidencing a violent tendency including: destruction of property, violence toward family members, and violence toward past girlfriends.... [David has] engaged in reckless and dangerous activities." 8. Dr. Schreckhise allowed David Garrison to baby-sit his then ten-year-old children overnight in a hotel room in the spring of 2015. 9. Dr. Schreckhise did not communicate to Dr. Parry that his wife was seeking guardianship of David Garrison, though David Garrison was going to be in and out of Dr. Schreckhise's home with the parties' minor children present. 10. From September 2016 through December 2016, incidents with David Garrison occurred that resulted in Dr. Schreckhise seeking an order of protection and hiring off-duty police officers to provide security outside his house for a few days. 11. Dr. Schreckhise did not communicate to Dr. Parry about the need for the off-duty police officers or these incidents with David Garrison, except for one incident that occurred on December 25, 2016.[3 ] 12. Other than the Christmas day episode, Dr. Schreckhise's testimony was, "I didn't think I needed to tell [Dr. Parry] about David ... I was handling it." 13. Parents in a joint custodial arrangement have the obligation to communicate with each other about everything that affects the children. The parents' ability to cooperate in making shared decisions affecting the children is crucial and failure to cooperate in doing so constitutes a material change in circumstances. 14. August of 2014 clearly marked a significant shift in the way the parties communicated with each other. 15. This significant shift in the way the parties communicate, based on Dr. Schreckhise's rules, is clearly a material change in circumstances in the joint custodial arrangement, as the parties now are unable to effectively communicate about their children. 16. The joint custody arrangement is no longer in the minor children's best interest. 17. Dr. Schreckhise in an effort to assert his and his wife's autonomy has put up barriers for communication between Dr. Parry and himself. Dr. Schreckhise has followed the advice of his marital counselor to the detriment of his children by putting his new wife and their marriage ahead of the needs of the children. The rules set in place by Dr. Schreckhise are manipulative, controlling, and wholly inappropriate and are not in the minor children's best interest. 18. Dr. Parry has consistently advocated for a shared burden and blessing of taking care of the children and kept a free flow of information between herself and Dr. Schreckhise about the children. Dr. Parry encourages and fosters an open relationship between the children and Dr. Schreckhise and shares all information with him. Dr. Parry's efforts *786and communication with Dr. Schreckhise have been child focused. 19. Therefore, it is in the best interest of the children that <mask> be awarded to Dr. Parry, subject to visitation in Dr. Schreckhise. 20. Visitation shall continue under the schedule established in the original decree: Monday and Tuesdays with Dr. Parry, Wednesday and Thursday with Dr. Schreckhise, and alternating weekends. With regard to holidays, in the absence of any agreement otherwise, the parties shall follow the Washington County Suggested Visitation Schedule[.] Schreckhise has appealed the circuit court's order.4


Here, the Family Court properly determined that granting the father <mask> would be in the child’s best interests. Its determination had a sound and substantial basis in the record. The Family Court was in a unique position to observe the parties and their witnesses testify, and carefully reviewed all the relevant evidence in making its decision. Although the parties’ own agreement provided for joint custody, both parties expressed their desire to rescind the agreement when they filed petitions for sole custody. Copertino, J. P., Pizzuto, Altman and Hart, JJ., concur.


Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2005). In July 2010, Family Court issued an order which, among other things, continued in effect an August 2008 order, entered upon stipulation of the parties, whereby the mother had <mask> of the child and the father had alternating weekend parenting time from Friday at 8:00 p.m. until Sunday at 6:00 p.m., as well as such other parenting time as agreed to by the parties. In August 2011, the father commenced the first two of these proceedings, seeking, among other things, modification of the custodial relationship and alleging the mother’s violation thereof. One month later, the father commenced a third proceeding, alleging that the mother’s harassment of him constituted a family offense.


After the Warren Family Court granted Heidi's motion to continue the June 14, 2016 hearing on the primary residential parent, a dispute arose regarding the children's summer visitation with Roger. Roger had purchased tickets for a flight on June 20, 2016, for the children to visit him in Kentucky. Heidi, however, did not want to put the children on the plane until July 3 so that one of the children could celebrate his birthday with his friends in Oregon. A number of motions were subsequently filed,5 resulting in an order granting Roger emergency <mask> of the children on June 23, 2016. That same day, Heidi moved to alter, amend, or vacate the Warren Family Court's order, pursuant to CR 59.05, given that the emergency prompting the order of sole custody had ended. Roger returned to Kentucky with the children on June 24, 2016. On July 13, 2016, the Warren Family Court restored joint custody of the children, pending other motions and further court orders.


The custody provision of the property settlement agreement states: “Plaintiff shall enjoy <mask> of the parties’ child whose name and date of birth is as follows: thomas Andrew van orden, born April 15, 1990”. The property settlement agreement also specified the child support and related provisions. Essentially, the parties agreed to opt out of the Child Support Standards Act (Domestic Relations Law § 240 [1-b]; Family Ct Act § 413 [CSSA]) due to the fact that defendant was unemployed at the time of the execution of the agreement. The parties anticipated, however, that once the defendant was employed, they would abide by CSSA. Additionally, the 1992 agreement provided that defendant would reimburse plaintiff for half of the cost of plaintiff’s increased health insurance premium which she incurred as a result of having to place the parties’ child on her health insurance policy.


On February 13, 2015, Plaintiff filed the pending motion to reconsider and set aside that portion of the [January 20, 2015,] order granting immunity to Defendants, arguing that, under an opinion released by the Court of Appeals on February 6, 2015, after the Court entered its Order, Defendants forfeited their immunity by, among other things, acting in bad faith. On February 18, 2015, Plaintiff filed a Notice of Appeal, without giving this Court the opportunity to rule on the pending motion. Plaintiff appeals from the very Order that she now seeks the Court to revisit. A Notice of Appeal generally divests the trial court of jurisdiction. If the Court of Appeals concludes that this Court does, in fact, still retain jurisdiction to consider Plaintiff's motion, the Court finds and concludes as follows: Plaintiff's motion is not properly brought under either CR 59, as a motion to alter, amend or vacate, because more than 10 days passed before the motion was filed; and, not proper as a [CR] 60.02 motion because there is an adequate remedy available for Plaintiff on appeal. The primary basis of the Court's Order dismissing Plaintiff's claims against Defendants was that her claims were time-barred. Defendants argued in the alternative the issue of quasi-judicial immunity and the Court agreed that if Plaintiff's claims were not time-barred, the Defendants would likely enjoy quasi-judicial immunity. Plaintiff now argues that Defendants Feinberg and Rouse forfeited any immunity they may have enjoyed because they acted in bad faith and showed a lack of impartiality and that she recently "discovered" that Defendant Feinberg had come to the same conclusion in the J.S. v. Berla case rendered by the Court of Appeals on February 6, 2015 and, as a result, this Court should reconsider its opinion. The Court disagrees. This Court determined that Plaintiff's claims were time-barred. That said, even if the case was not time-barred, the Court found they all enjoyed at a minimum quasi-judicial immunity. Plaintiff alleges that Defendant Feinberg and Defendant *689Rouse forfeited their immunity because, during the course of the custodial evaluation, they acted in bad faith and/or showed a lack of impartiality. Plaintiff has failed to allege how she was harmed by the alleged actions of Defendant Feinberg and Defendant Rouse. Based on this Court's review of the Fayette Family Court record, the Fayette Family Court ordered Dr. Feinberg and Ms. Rouse to conduct a custodial evaluation and ordered Plaintiff's ex-husband, Defendant Patten, to pay for the evaluation. After completing the evaluation in August 2011, Dr. Feinberg, with the assistance of Ms. Rouse, recommended that Plaintiff be awarded custody of her children. At the subsequent dissolution hearing, the Court awarded Plaintiff primary custody of her children. In December 2011, Plaintiff and Defendant Patten entered into a settlement agreement. Both parties were represented by counsel. They agreed to closely follow Dr. Feinberg's recommendations, namely, Plaintiff admits in her motion that Dr. Feinberg recommended, and Plaintiff and Defendant Patten agreed, that he would have no visitation or time-sharing, supervised or otherwise, until he completed anger management and reconciliation therapy. Plaintiff admitted to the Court in her response to Defendants' motion to dismiss that Defendant Patten has had no contact with the children since April 2011, shortly after Dr. Feinberg's custody evaluation began. Plaintiff complains that Dr. Feinberg and/or Ms. Rouse became aware of but failed to report allegations of suspected sexual abuse by Defendant Patten against the children in March 2011 and that his failure constitutes bad faith sufficient to strip Dr. Feinberg and Ms. Rouse of protected immunity. Two separate Cabinet investigations were conducted during the time that Dr. Feinberg and Ms. Rouse conducted their custodial evaluation. As previously noted, Defendant Patten has not had any contact with the children since April 2011. Additionally, Plaintiff argues that Dr. Feinberg and Ms. Rouse lacked the requisite impartiality to cloak them with immunity. She argues in her motion that Defendant Patten hired Dr. Feinberg and that Dr. Feinberg and Ms. Rouse, inter alia , "altered Plaintiff's psychological testing [and] deleted favorable provisions of [her] psychological testing," "deleted unfavorable provisions of Mr. Patten's psychological testing," "ignored Mr. Patten's pornography obsession," "failed to interview Mr. Patten's sister, who reported deviant sexual actions by Mr. Patten[.]" What facts or portions of the evaluation that Dr. Feinberg decided to include, or omit, from his report is left to his discretion. The Fayette Family Court ordered Dr. Feinberg to conduct a custody evaluation and ordered Defendant Patten to pay for the evaluation. Dr. Feinberg recommended that Plaintiff be awarded custody of her children. The Fayette Family Court accepted Dr. Feinberg's recommendation and awarded Plaintiff <mask> of her children. Plaintiff and Defendant Patten incorporated many of Dr. Feinberg's recommendations into their settlement agreement in December of 2011. And, most importantly, Defendant Patten has not had any access to the children since April of 2011. Dr. Feinberg's exercise of judgment and discretion has not had any adverse effect on Plaintiff. Plaintiff's claims against Defendant Feinberg and Defendant Rouse ... are precisely the kind of claims that quasi-judicial immunity protects. See *690Stone v. Glass , 35 S.W.3d 827 (Ky. Ct. App. 2000). Even if this case were not time-barred, the Court finds and concludes that based on the foregoing, that Defendant Feinberg and Defendant Rouse are entitled to the protection of quasi-judicial immunity. The court included the necessary finality language, and Nave filed a notice of appeal on June 10, 2015, naming Dr. Feinberg and Rouse as appellees.5 The three appeals have been consolidated for all purposes.6


In Bezio v Patenaude (410 NE2d, at p 1215) where a lesbian mother was opposed by the children’s guardian in a custody case, the Trial Judge reached the conclusion that " 'a Lesbian household, creates an element of instability that would adversely [a]ffect the welfare of the children.’ ” The Supreme Judicial Court of Massachusetts, the State’s highest court, reversed, stating that the Judge’s finding was insufficient to support the Judge’s conclusion that custody should remain in the guardian. The record did not support an inference that the mother’s lesbianism would render her unfit to further her children’s welfare. Another Massachusetts case (Doe v Doe, 16 Mass App 499, 452 NE2d 293 [1983]) reached the conclusion that a mother’s homosexual relationship did not preclude granting of joint custody of her child to her. There, the court found no evidence to show that the mother’s homosexual lifestyle would adversely affect the nine-year-old male child. In Medeiros v Medeiros (8 Fam L Rptr 2372 [1982]), a Vermont court, in determining whether the homosexual mother or heterosexual father would better serve the interests of the children, was unable to find that either of the parties has not (been) or would not be a proper custodial parent. Since the two boys, ages 8 and 11, were primarily taken care of by the *329mother, who provided them with emotional support throughout the marriage and during the period of separation, and since the boys were thriving in their mother’s care at the time of the court’s decision, the court awarded <mask> of the children to the defendant mother. The court found that the mother’s homosexuality presented no substantial risk of harm to the children. Two years later, the father, who had married since the divorce, attempted a custodial change asserting that he was able to provide a better home than the mother. The mother moved to dismiss the father’s motion for a change of custody. The motion was dismissed after a short, 13-minute hearing. (See, Judge’s Log, Medeiros v Medeiros, Vt Super Ct, Bennington County, Nov. 26, 1984.) Similar results can be found in other neighboring States. See, DeBoise v Robinson (No. C-9104 Del Fam Ct, New Castle County, Nov. 17, 1980), cited in Rivera (op. cit, at 355) where a lesbian mother was awarded custody and the court imposed no restrictions on her living arrangement with another woman, and M.P. v S.P. (169 NJ Super 425, 404 A2d 1256, supra) where a mother’s homosexuality and accompanying embarrassment to children were held not proper grounds for removal of custody. On the West Coast, the State courts of Washington and California have provided guidance in this area of the law. In Matter of Marriage of Cabalquinto (100 Wn 2d 325, 669 P2d 886 [1983]) the parties were married, had a son, and later divorced in Colorado. The divorce decree granted custody to the heterosexual mother with liberal visitation rights to the homosexual father. The mother remarried and moved to Washington and the father moved to California where he lived with a homosexual lover. The father decided he wanted his young son to visit in California and the mother refused. The father moved in a Washington State court to have his Colorado visitation rights enforced. The Trial Judge, in an oral opinion, refused to grant visitation in California stating a strong antipathy to homosexual living arrangements. " '[A] child should be led in the way of heterosexual preference, not be tolerant of this thing [homosexuality] * * * it can[not] do the boy any good to live in such an environment. It might do some harm.’ ” (Matter of Marriage of Cabalquinto, supra, p 328, p 888.) In remanding the case to the lower court for further consideration, the high court of Washington was emphatic: "We now make specific the rule of law which was subsumed in the decision in Schuster v. Schuster, supra: homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. This *330rule is consistent with the decisions of other state courts” (p 328, p 888). The court said that there was no evidence that a visitation of substantial periods in the summer months would endanger the physical, mental, or emotional health of the child. Visitation of such a duration was seen as reasonable and something which must be determined with reference to the needs of the child rather than the sexual preference of the parent. The California case of Batey v Batey, reported about in the New York Times, July 1, 1986, is a complex homosexual father-child custody case which involved proceedings in Colorado and California. Frank Batey, a homosexual, and Betty Lou Batey, a fundamentalist Christian, parents of a son, Brian, were divorced in California in 1980 and Betty Lou was given custody of Brian, then age nine. Frank was granted liberal visitation. In 1982 custody was changed to Frank, primarily because Betty Lou denied Frank visitation. Eleven days after the custody change, Betty Lou vanished with Brian for 19 months until she was found in Colorado in 1984. When she refused to produce the child, she was jailed for contempt. Colorado returned Brian to California and, in a complex case which involved kidnapping, contempt, and custody, San Diego County Superior Court Judge Judith McConnell determined that neither parent should have custody but only visitation. Judge McConnell decided that Brian would be in "grave danger” with the mother, who had caused him to form strong views opposing his father’s homosexuality and who had failed to provide him with any education during the 19-month abduction. The Judge also decided that since the boy’s views about his father were so deeply entrenched, a temporary foster home was in his best interest. Finally, at a closed hearing on June 18, 1986, Judge McConnell awarded Frank Batey custody of Brian, now age 15. Judge McConnell said that the father was better able to meet the needs of the boy.


Pursuant to the judgment of divorce granted March 16, 1982, the parties were awarded joint custody of the infant issue of the marriage, Lindy, presently six years old. By an order to show cause granted by this court on January 10, 1984, the defendant seeks an award of <mask>. In support of this application the defendant submits an affidavit alleging that the plaintiff has married an individual who is an alcoholic, has been hospitalized for his alcoholism, and who, on information and belief, has struck the *436infant daughter on several occasions causing bruises on her arms and instilling fear of him in her. Defendant further asserts that it was the parties’ intention that, in the event the plaintiff remarried or cohabited, the defendant must approve of such person or receive sole custody. Defendant states that he has been denied visitation from time to time and that several of the support checks sent to the plaintiff have been-indorsed by her current husband. Defendant concludes by stating that his housing facilities are better suited for the needs of their daughter, that he is more capable of providing her with a moral and just upbringing, and that she would attend a better school if living with him.


Cardona, P. J., Mikoll, Mercure and Weiss, JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by reversing so much thereof as denied petitioner’s request for <mask> of the parties’ children and denied her request to relocate with the children to another *849State; petitioner’s request for sole custody of the children granted and matter remitted to the Family Court of Fulton County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.


The Family Court providently exercised its discretion in dismissing, without a hearing, the mother’s petition to modify an existing custody order so as to award her <mask> of the subject child and to award only daytime visitation to the father until he obtains “suitable housing.” The mother was required to make “an evidentiary showing sufficient to warrant a hearing” based upon a subsequent change in circumstances (Matter of Grant v Hunter, 64 AD3d 779, 779 [2009]), such that a modification is necessary to ensure the continued best interests and welfare of the child (see Matter of Gurewich v Gurewich, 58 AD3d 628, 629 [2009]). The mother failed to do so (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638 [2012]; Matter of Dowgiallo v Williams, 99 AD3d 708 [2012]; Matter of Aronowich-Culhane v Fournier, 94 AD3d 1114 [2012]; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615 [2011]).


The trial court ruled that JW would attend school with his brothers in Berryville. Over Doby's objection, the trial court ruled that an attorney ad litem would be appointed, and an order was filed appointing Ryan Blue to represent the boys. On September 28, 2017, Shannon amended her complaint for divorce, alleging eighteen months' separation. Doby amended his counterclaim, alleging adultery and general indignities as grounds and asking that the joint-custody order continue or that he be awarded <mask>.


On remand, the circuit court held a hearing on March 8, 2018. On April 2, the court entered a written order awarding Consuela <mask> of the children but ordering her and Daniel "to share parenting time with the children equally using a 50/50 schedule in the manner previously *405ordered which the parties/parents have followed since the divorce." As to child support, the court ordered that Daniel's child-support obligation shall no longer be offset against Consuela's obligation due to the termination of the joint-custody arrangement. Specifically, the court ordered Daniel to pay Consuela $ 3,666 a month in child support.3 This appeal followed.


‘ ‘ fifth : The parties hereto agree that it is for the best interest and welfare of the infant issue that the child continue to remain with and reside with the husband and by reason thereof the parties hereto agree that the husband shall have <mask> of said infant issue with reasonable rights of visitation to the wife at all times with due regard to the welfare and interest of the child. “ sixth: In view of the further fact that the means of the husband are limited and that the wife acknowledges her responsibility for the care and maintenance of the said infant, the wife agrees to contribute the sum of $150.00 per month towards the maintenance and care of the said infant issue payable on the 1st day of each month commencing as of October 1,1959. ‘ ‘ eighth : In furtherance of the foregoing, the parties hereto agree that in the event that the said child shall attend a private school, either elementary, secondary or college, that they shall contribute proportionately towards the cost thereof based on the respective means and income of the parties as then existing, it being the intent of the parties hereto that the child shall have all possible care and education consistent with the means and income of the respective parties.” *555The record reveals that Mrs. Manville had been paying the $150 a month prescribed in paragraph “sixth” of the separation agreement. This was a recognition on her part that under the special circumstances of this case, that she, rather than the father, was responsible for the larger part of the child’s support. She so conceded in paragraph “ sixth ” of the agreement. This fact was known to the plaintiff, and relied upon by him, when he agreed to represent the child in opposing the mother’s application brought by writ of habeas corpus to transfer the custody of the child from the father to the mother in contravention to what said parents had agreed under paragraph “ fifth ” of the separation agreement. (See Siegel v. Hodges, 20 Misc 2d 243, affd. 10 A D 2d 646, affd. 9 N Y 2d 747, supra.) Further, the mother agreed under paragraph “ eighth ” of the separation agreement to pay an additional amount for the child’s education proportionate to the income of the father and herself at the time such expenditure might occur. From the foregoing, an agreement may be implied for the mother to pay a proportionate share of the legal expenses rendered by the plaintiff in opposing the habeas corpus proceeding, particularly viewed in the light that said expenses were made necessary by the affirmative action of the mother in instituting the proceeding. Therefore, the plaintiff would be entitled to obtain a judgment for the reasonable value of the legal services he rendered the child against both parents, if both had been served with the summons and complaint in this action. Since plaintiff served only Christina Ocker Manville with process, his judgment is limited to that defendant.


Pursuant to a separation agreement which was subse*781quently incorporated but not merged into a judgment of divorce, petitioner and respondent shared joint custody of their two children. Respondent retained physical custody of the children, while petitioner had visitation rights and was obligated to pay child support. Petitioner thereafter sought <mask> of both children on the grounds that respondent was not providing for the children’s physical and emotional needs by failing to provide medical attention when necessary, failing to feed and clothe them properly and in using excessive corporal punishment. Respondent opposed the petition and cross-petitioned for sole custody.


In February 1993, the parties filed cross petitions alleging a change in circumstances and seeking <mask> of the children. At the conclusion of the hearing that followed, Family Court found, inter alia, that petitioner had presented insufficient evidence of respondent’s alleged interference with visitation rights to warrant a change in custody and, further, that the allegations of sexual abuse raised a serious question regarding petitioner’s fitness as a parent.* Accordingly, Family Court continued custody with respondent and granted supervised visitation to petitioner. This appeal by petitioner followed.


Additionally, as previously stated, evidence of a parent’s conduct before and after the statutory 6-month period is also relevant to determine whether the purpose or intent of the parent was to abandon the child. See id. In considering the time prior to the 6-month timeframe, there was evidence that Haley and Theodore had a close relationship for the first 7 years of Theodore’s life. Haley lived with Theodore until he was 5 years old and, after Tyson attained <mask> of Theodore in 2017, saw him on a regular basis during her parenting time. Haley testified that she and Theodore would do various activities together and that she would support him at his extracurricular events. Haley’s mother testified that Haley would often express a desire to see Theodore. There was also evidence that Tyson had denied Haley parenting time during her designated weekends in April and May 2019. Haley requested phone calls with Theodore in May, June, July, and November. Haley texted and video called Tyson in June and July in an effort to reach Theodore. In November, Haley emailed Tyson requesting parenting time with Theodore. Haley also testified to calling Tyson repeatedly in 2019 to speak to Theodore. Both Haley and her mother testified that Haley had purchased Theodore birthday and Christmas gifts and was storing the gifts until Haley was permitted to see Theodore. After the petition was filed, Haley emailed Tyson in November 2020 to inform him that she had met all of the requirements of stage one of the parenting plan and was requesting parenting time with Theodore. Haley had started counseling, provided Tyson with a negative hair follicle test at his request, provided her address for a well-check, and had agreed to cover the cost of a third-party to supervise her visit. When Tyson denied Haley’s November request for parenting time, Haley testified that she filed a contempt action against Tyson and Tyson testified that Haley began calling him every 2 weeks to ask for time with Theodore. In January 2021, Haley resumed paying her monthly child support obligation consistently. To constitute abandonment, it must appear that there has been, by the parents, a giving up or total desertion of the minor child. In re Adoption of Micah H., supra. The question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010). Further, adoption statutes will be construed strictly in favor of the rights of the natural parents in controversies involving termination of the relation of the parent and child. Id. Based on the record before us, Haley has not given up or totally deserted Theodore. Although Haley’s efforts to have contact with Theodore have been sporadic and limited, and her actual contact nominal, the evidence demonstrates her desire and intent to reestablish a parent-child relationship. Therefore, the evidence is not clear and convincing that Haley abandoned Theodore. CONCLUSION We conclude that the trial court did not err in finding that Haley had not abandoned Theodore and, therefore, did not err in dismissing Brittany’s petition for adoption. Accordingly, the decision of the county court is affirmed. AFFIRMED.


It is well settled that where a will directs the trustee to pay income to a beneficiary the latter has an absolute right to receive it which is enforcible by his committee or guardian if he is under a legal disability. (Matter of Bearns, 251 App. Div. 222, affd. 276 N. Y. 590; Gasquet v. Pollock, 1 App. Div. 512, affd. 158 N. Y. 734.) On the other hand, where the direction is to apply income to ihe use of the beneficiary the trustee must exercise its own discretion in disbursing funds and it cannot avoid that responsibility by making payment to a committee, guardian, or donee of a power in trust. (New York Trust Co. v. Black, 178 App. Div. 4, affd. 223 N. Y. 703; Matter of McCormick, 40 App. Div. 73, affd. 163 N. Y. 551; Matter of Connolly, 71 Misc. 388; see Matter of Leeds, 23 N. Y. S. 2d 679, 694.) Whether the trustee is to “ pay ” or “ apply ” depends on the intention of the testator. A direction to 1 ‘ apply ’ ’ income may even be construed to require payment directly to the beneficiary. (Matter of Bearns, supra.) A trust to “ pay over ” income to a beneficiary is valid within section 96 of the Real Property Law authorizing trusts to ‘1 apply ’ ’ income because payment of the income to the beneficiary is an application thereof. (Leggett v. Perkins, 2 N. Y. 297; Moore v. Hegeman, 72 N. Y. 376.) Here, although the testator used the words “ to pay over ”, he did not direct the trustees “ to pay over ” to the infant. Rather he directed them ‘ ‘ to pay over such income or portion of such income * * * for the support, mainte*588nance and education of ” the beneficiary. (Emphasis supplied.) In addition, he expressly conferred discretion upon the trustees to determine the amount of income to be paid out, the payment intervals, and the specific purposes for which the funds are to be used. It would he unreasonably circuitous and expensive for the trustees to make payment of the amounts they deem “ necessary or desirable ” to the donee of the power in trust who in turn would have to pay them out for the use of the infant. This is especially so because the donee is one of the two trustees and the widow, who has the <mask> of the infant, is the other. Both acting jointly need make but one decision concerning the use of income or principal. It is held that the trustees are fully authorized under the terms of the will to apply income and principal to the use of the beneficiary. Payment to the petitioner in his capacity as donee of the power in trust is therefore unnecessary.


In this case, a longtime litigant before this court now seeks appointment of counsel. The pending matter stems from a confluence of two proceedings. In April 2016, the applicant father, subject to substantial restrictions of his parenting time with his two teenaged daughters, filed a petition in Family Court seeking to remove the court imposed restriction of supervised visitation with his children, and obtain <mask> and primary residence. In response, the mother filed an order to show cause in Supreme Court seeking a finding of contempt against the father, sentencing him to incarceration, a fine of $25,000, payment of counsel fees, elimination of any contact between father and children, and other assorted relief (including transfer of the Family Court petition to Supreme Court). The family court petition was transferred to this court, and the father then applied for appointed counsel.


Two cases bear distinction from the instant situation. In Sneddon v. Payne (114 Misc. 537) the plaintiff handed his bag to a “ red cap ” porter not in the employ of the defendant, who took the bag into the train. When the plaintiff got on the train a few *461minutes later, he did not find his bag. It was held that the defendant was not hable because it was not shown that the bag was ever in the <mask> of the defendant. In Weingart v. Pullman Co. (58 Misc. 187) a passenger gave his coat to a porter as he was entering the train, and told him to put it on the seat he had engaged. The porter did so. The plaintiff then went into another car and remained there an hour and a half. Upon his return he found his coat had disappeared. It was held that the plaintiff had not established a cause of action because “ the coat was not left in the care or custody of the defendant’s servant ” (p. 188). Neither these cases nor those cited by the defendant are authorities against the plaintiff. Indeed, the cases cited by the defendant sustain the rule here laid down. (See Honig v. Riley, 244 N. Y. 105; Adams v. New Jersey Steamboat Co., supra; Carpenter v. N. Y., N. H. & H. R. R. Co., supra; Williams v. Webb, 27 Misc. 508.)


Since the doctrine of res ipsa loquitur permits the trier of facts to infer negligence from the mere happening of accident where defendant is in exclusive possession and control of the instrumentality which caused the accident, it is within the power of this court to find negligence on the part of the corporate defendant in the exercise of its care and handling of the baggage which led directly to the injuries inflicted upon the plaintiff by the individual defendant’s dog (Yandrasitz v. Teddy’s House of Sea Food, 286 App. Div. 146; Curley v. Ruppert, 272 App. *332Div. 997). The New York case in point is Thomas v. Hudson Riv. Day Line (176 N. Y. S. 2). In Thomas the dog was delivered into the <mask> of the carrier, Hudson River Day Lines. While in the carrier’s custody and control the dog escaped, jumped overboard and was lost. The count held the loss of the dog raised a presumption of negligence on the part of the carrier.


Respondent filed a petition in April 1992 requesting custody of the children. Petitioner filed a petition seeking custody (via an order to show cause) in May 1992. The petitions were tried jointly. The parties testified at the trial, giving conflicting testimony on the issues. Petitioner presented evidence of respondent’s drinking problems and his verbal and physical attacks on her, even in the presence of at least one of the children. She testified that she left the marital residence because of fear for her safety. Respondent testified that he did not consider himself an alcoholic and did not drink beer every day, as petitioner claimed, nor did he ever grab or strike her. Family Court granted petitioner <mask> of the children, found that her move to Texas was justified because of respondent’s conduct and permitted her to relocate to Texas. Respondent appeals.


Claude Kirby testified the girls were doing well in school. He admitted he had trust issues with Jessica, as she had previously assured him she was "done with" Jacob and they were getting divorced, only for them to be attempting to work things out the following week. Claude stated he and his wife had provided the girls with a stable home, and they had invited Jessica over to "hang out" with the girls, which she had done on a few occasions. He testified that if he received <mask>, he would like for Jessica to be able to see the girls, but he had concerns about Jacob.


Daniel asks this court not to remand the case to the circuit court and to award him <mask> of the children. However, because the circuit court maintained the joint-custody arrangement, it made no findings regarding this issue. As such, in order to accommodate his request, we would be forced to make factual and credibility findings, which can only be made by the circuit court. See Doss , 2010 Ark. App. 95, 377 S.W.3d 348.


Modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the children (see Matter of Chery v Richardson, 88 AD3d 788, 788 [2011]; Matter of Conforti v Conforti, 46 AD3d 877 [2007]; Matter of Strand-O’Shea v O’Shea, 32 AD3d 398 [2006]; Matter of Rho v Rho, 19 AD3d 605, 606 [2005]; Matter of Dow v Dow, 306 AD2d 529, 530 [2003]). The court must consider the totality of the circumstances (see Matter of Strand-O’Shea v O’Shea, 32 AD3d at 398). The evidence adduced at the hearing in the instant matter established that the mother’s apartment had become a “harried and chaotic environment” that did not provide the subject children with the focused attention and structure they needed for success in school and intellectual development. Further, the evi*731dence established that the mother had failed to provide appropriate medical attention to the children, who apparently suffered from seizure disorders and asthma. Accordingly, the record reflects that a change in circumstances had occurred, and the evidence supported the Family Court’s determination that awarding <mask> of the subject children to the father was in their best interests (see Matter of Conforti v Conforti, 46 AD3d at 878; Matter of Battista v Fasano, 41 AD3d at 713).


On December 12, 2014, Bianka filed a petition under the UPA naming Gladys as the respondent.3 The petition alleges Gladys is Bianka's mother and requests a court order awarding sole legal and physical custody to Gladys. Both Bianka and Gladys submitted declarations in support of the petition. As the basis of her custody request, Bianka asserted her biological father, Jorge, abandoned her physically, emotionally, and financially before her birth. Bianka asked the court to find that her father abandoned her within the meaning of Family Code section 7822, subdivision (a)(3),4 and place her in her mother's <mask>. In addition, Bianka asserted Jorge had beaten her mother while she was pregnant. Bianka cited Jorge's domestic violence as another factor relevant to the court's custody determination and argued his conduct constituted abuse within the meaning of the Family Code. Bianka went on to argue that Jorge's abandonment also provided a factual basis for an order containing SIJ findings. Both Bianka and Gladys submitted declarations in support of the petition, in which they recounted Jorge's abuse and abandonment.


Pursuant to an agreement between the parties, an order of the Family Court, Westchester County, dated April 11, 1991, provided that the father would have <mask> of the parties’ daughter and would be fully responsible for her support. Approximately one year later, the father commenced this proceeding seeking child support from the mother, who had previously transferred her interest in certain real property to the father in consideration for his agreement to support their daughter.


In many cases, a child who seeks SIJ status will be involved in proceedings in the juvenile court (for foster home placement) or the probate court (for the appointment of a legal guardian). However, where the child has reunited with one parent in the United States, it is more likely the child will be the subject of a custody proceeding in the family court. In this case, Bianka initiated a parentage action under the Uniform Parentage Act (Fam.Code, § 7600 et seq. ) naming her mother as the respondent. Although Bianka's mother did not file a response to the petition, it appears maternity is uncontested. Bianka also filed a pretrial request for *854order asking the court to place her in the sole legal and physical custody of her mother and to make the additional findings necessary to allow her to petition for SIJ status, namely that she cannot reunify with her father because he abandoned her and it is not in her best interest to return to Honduras. The court declined to make the requested findings primarily because it concluded Bianka's request for an award of <mask> to her mother in an action under the UPA necessarily implicated paternity and parental rights (if any), which in turn made Jorge an indispensible party to the parentage action.


We note, ex gratia , that the majority of the alleged excluded provisions appear to involve issues that are inapplicable to this case at this time due to Mother receiving sole legal and sole physical custody of the children, Father receiving supervised visitation, and the children not yet being school age. Father contends that the court failed to include such items as transportation duties associated with the residential schedule, appropriate times for telephone access, details regarding how decision-making rights and responsibilities will be shared, methods of communicating school information, a dispute resolution procedure for those matters on which the parties disagree, etc. Father apparently recognizes the inapplicability or determination by default of some of these Section 452.310.8 provisions in arguing that, "[w]hile the lower court may award <mask> to Mother, that does not absolve the court's responsibility to enter a parenting plan that complies with Missouri law."


Jovel (Father) and Blanco (Mother) had a relationship several years ago and produced a child, Mindy. According to Mother, when she became pregnant with Mindy, Father began verbally and physically abusing her. Mother described an incident in November 2015 when Father struck her in the face with an open hand. When Mother was eight to nine months’ pregnant, Father “got upset, picked [her] up, and pushed [her] into a coffee table” hurting her back. After Mother locked the door to her apartment Father came back in through the balcony and threatened to destroy Mother’s property. In 2016, after Mindy was born, Father beat Mother, choking her, biting her arm, and slamming her against furniture. Father’s verbal abuse continued into 2017 prompting Mother to sue for <mask> of Mindy.


The biological parents also argue that the family court erred because the facts and circumstances exhibit a reasonable expectation of improvement. The Mother argues that since she was released from prison, she completed intensive outpatient treatment, parenting classes and counseling, paid child support, and gained employment, all without a court order, she shows signs of improvement. The Father argues that: (1) the family court never ordered child support; (2) the court awarded him joint custody in October 2015; (3) he maintained his visitation schedule until the court awarded L.B. and B.B. <mask> in June 2016; and (4) he has another adult daughter with whom he is significantly involved.


In this case, Daniel did not ask the court to deviate from the family-support chart after the court awarded Consuela <mask> of the children. Thus, there are no findings addressing a request for deviation or an explanation why the court did not deviate from the chart based on the sole-custody arrangement. See Riddick v. Harris , 2016 Ark. App. 426, 501 S.W.3d 859 (declining to consider an argument that the circuit court failed to deviate from *407family-support chart because appellant did not ask the court for a deviation). This court will not consider arguments raised for the first time on appeal, and an appellant must obtain a ruling from the circuit court on an issue in order to preserve an argument for appeal. Id. Because the circuit court did not rule on the point, this court has nothing to review. Id. It was Daniel's burden to raise the issue of a deviation from the family-support chart and to obtain a specific ruling on it, and his failure to do so precludes this court from considering the merits of his argument.


In every instance of an implied revocation by destruction of any kind quo animo the act is done must be established aliunde. The mere physical act of destruction is too equivocal to effect an implied revocation per se. The destruction may have been unintentional; it may have been by a stranger, therefore quo animo it was in fact done becomes highly essential under the Statute of Revocations. In bonis Tozer, 7 Jur. 134; In bonis Hannam, 14 id. 558; Clarke v. Scripps, 16 id. 783. What the rule is when there is no evidence of intention is another point. The cases bearing on the resolution of that precise question — what is the rule in this state, when there is no direct evidence of intention — are not many, and those existing are not apparently of a very high order. But it is unnecessary now for us in this matter to elaborate this particular point, for here there is, in any event, direct proof of an intention not to revoke the whole will and there is no proof or presumption in this matter that the testator himself excised the missing part of the will which was accessible to so many others besides testator himself. Under the circumstances there is here no proof, or presumption whatever, of animus revocandi, and therefore no implied revocation of any kind has been established in any way. Had the will been always in the testator’s <mask> there might have been a presumption that he cut out the missing clause himself animo revocandi. But such is not the case here.


The parties had entered into a separation agreement prior to the entry of the decree of divorce. The agreement which, by its terms, was to survive any decree of divorce which might be obtained, accorded the defendant the right of visitation during one week end in each month, and further provided that the plaintiff would be free to establish a domicile for herself and the issue of the marriage in any place in the United States, provided due notice were given the defendant. The provisions of the separation agreement were not incorporated into the judgment. The judgment of divorce gave plaintiff <mask> of the infant, giving the defendant 1 ‘ reasonable rights of visitation.”


Pursuant to a consent parenting plan, Makala Gill and John Collins shared joint legal and physical custody of their minor child. Collins filed a motion to modify custody, and on December 7, 2021, the trial court entered an emergency temporary order awarding Collins <mask>. Gill filed a motion for reconsideration, which was summarily denied. On Friday, January 7, 2022, she filed this application for discretionary review of the trial court’s December 7 order. Collins has filed a motion to dismiss, arguing that we lack jurisdiction to consider Gill’s application because it is untimely. We agree. Pursuant to OCGA § 5-6-34 (a) (11), “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody” are directly appealable. Therefore, a party seeking to challenge a child custody order, including an interlocutory custody order, may file a direct appeal. See Lacy v. Lacy, 320 Ga. App. 739, 742 (3) (740 SE2d 695) (2013); Taylor v. Curl, 298 Ga. App. 45, 45 (679 SE2d 80) (2009). Ordinarily, when a party applies for discretionary review of a directly appealable order, this Court grants the application. See OCGA § 5-6-35 (j). To fall within this general rule, however, the application must be filed within 30 days of entry of the order sought to be appealed. See OCGA § 5-6-35 (d), (j). The requirements of OCGA § 5-6-35 are jurisdictional, and this Court cannot accept an application for appeal not made in compliance therewith. See Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). Here, Gill’s application was filed 31 days after the entry of the custody order and is therefore untimely. Although Gill’s application is timely to the denial of her motion for reconsideration, the denial of a motion for reconsideration is not ordinarily appealable in its own right. See Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000); see also Voyles v. Voyles, 301 Ga. 44, 47 (799 SE2d 160) (2017) (explaining that appeal from order denying a motion to set aside was not a direct challenge to the court’s underlying custody ruling and therefore was not directly appealable under OCGA § 5-6-34 (a) (11)). Nor does the denial of reconsideration extend the time for filing a discretionary application. See Harris v. State, 278 Ga. 280, 282, n.3 (600 SE2d 592) (2004). The denial of a motion for reconsideration of an interlocutory order may serve as the basis for an application for interlocutory review “if a certificate of immediate review is obtained from the trial court.” Mayor & Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 17 (1) (441 SE2d 63) (1994); see also Ferguson v. Freeman, 282 Ga. 180, 181 (1) (646 SE2d 65) (2007). However, Gill did not obtain a certificate of immediate review or otherwise comply with the interlocutory appeal process. See OCGA § 5-6-34 (b). Because Gill’s application is untimely to the December 7 order and Gill did not follow the proper appellate procedure to seek review of the trial court’s order denying reconsideration, we lack jurisdiction. Accordingly, Collins’s motion to dismiss is hereby GRANTED, and this application is hereby DISMISSED. After she filed her application, Gill also filed an emergency motion under Court of Appeals Rule 40 (b), seeking review of the December 7 order. Her emergency motion is hereby DENIED.


Matter of J.F. v L.F. (181 Misc 2d 722) was the first reported New York case to discuss the theory of PAS in the context of custody decisions. The court did not specifically base its decision on a finding of PAS, but instead utilized case law holdings relating to interference with the child’s relationship with the noncustodial parent. It was on this basis that the court ultimately granted <mask> to the father and suspended the mother’s right to visitation. (See also Daghir v Daghir, 82 AD2d 191.) This followed a line of cases that indicated that interference with the child’s relationship with the noncustodial parent has been said to be so inconsistent with the child’s best interest as to per se raise a strong probability of unfitness. (See also, Maloney v Maloney, 208 AD2d 603; see also, Brandes, Parental Alienation Syndrome, NYLJ, supra.)


The father has offered his testimony upon his application to intervene. It appears therefrom that he is now and for sometime past, and particularly during all of the year 1931, was in the hotel business at New Lebanon Center, Columbia county, in this State. Differences between husband and wife arose, and on April 27, 1926, the parties entered into the usual form of separation agreement upon the express consideration “ of the sum of $1.00 to each party hereto by the other duly paid * * * and for the other considerations herein contained." The contract provided that the wife should have the <mask> of and control of the children “ without any interference on the part of the party of the first part." Privilege to see the children at times convenient to the wife was therein given the husband. There was the further stipulation that if the parties should become reconciled the agreement should be void.


A custodial parent’s conduct may warrant a change of custody if it reaches “the level of deliberately frustrating, denying or interfering with” the parental rights of the noncustodial parent so as to raise doubts about the custodial parent’s fitness (see Matter of Lawrence C. v Anthea P., 79 AD3d 577, 579 [1st Dept 2010]). However, even egregious conduct in this regard must be viewed within the context of the child’s best interests (see Matter of Lew v Sobel, 46 AD3d 893, 895 [2d Dept 2007] [“While one parent’s alienation of a child from the other parent is an act inconsistent with the best interests of the child, here, the children’s bond to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention” (citation omitted)]; Matter of Charpentier v Rossman, 264 AD2d 393 [2d Dept 1999] [father properly awarded <mask>, notwithstanding his interference with relationship between mother and child, based on strong preference for father expressed by 17-year-old child]). Although we agree with the trial court that the father should have been more restrained in the comments he made about the mother in the presence of Pascal and Scarlet, his conduct in this case does not rise to the level of deliberately frustrating, denying or interfering with the parental rights of the mother so as to raise doubts about his custodial fitness.


On or about July 6, 2009, prior to the signing of the judgment of divorce, plaintiff moved for an order modifying the terms of the stipulation of settlement regarding custody and child support. Specifically, plaintiff sought <mask> and an order directing defendant to pay child support in accordance with the CSSA. On or about July 21, 2009, defendant crossed-moved, also seeking sole custody and an order directing plaintiff to pay child support pursuant to the CSSA.


During the period of July 15, 1985 to April 21, 1988, the children spent approximately one half of their time with each party. The parties did not modify the separation agreement dated December 28, 1979, to reflect this change in custody, nor any change in child support. Defendant petitioned the Supreme Court, County of Nassau, for custody of the children. Said proceeding culminated in a decision by the Honorable Howard E. Levitt dated December 15, 1985, awarding joint custody of the children to the parties and substantially dividing physical custody equally between the parties. Furthermore, Justice Levitt’s order provided as follows: "Each party shall solely bear their respective costs for the upkeep and maintenance of the children while in their custody, and all extra expenses for help, camp and education shall be borne equally.” By an order dated January 12, 1987, the Appellate Division, Second Department, reversed said order restoring <mask> to the wife as provided in the aforesaid separation agreement and divorce decree.


Respondent is the biological mother of John Z. (born in 1983). It appears that respondent and John’s father were awarded joint custody of the child in January 1987, with <mask> being awarded to the child’s father in March 1988 following respondent’s relocation to another State. John apparently remained in his father’s custody until August 1989, when he was voluntarily placed with petitioner. Although not entirely clear from the record, it appears that John subsequently was found to be abused and neglected by his father and custody was continued with petitioner pending the father’s completion of certain conditions imposed by Family Court.*


Both motions to dismiss this appeal are denied. The requests encompassed within those motions to take judicial notice of records from the Louisiana dependency court proceedings are granted. The juvenile court's orders terminating jurisdiction and related exit orders awarding <mask> of C.W. to Rusty are reversed, and the case is remanded for further proceedings consistent with this opinion. The clerk of this court is directed to send a copy of this opinion immediately upon its filing to the clerk of the Louisiana juvenile dependency court.


The parties and the trial court have framed this issue in terms of custody over the minors' orthodontic care.9 A trial court's order modifying custody is "appropriate only if the parent seeking modification demonstrates ' "a significant change of circumstances" indicating that a different custody arrangement would be in the child's best interest.' [Citation.] But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to <mask>, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard." ( In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072, 74 Cal.Rptr.3d 803.)


After the parties’ divorce in 1990, petitioner was awarded <mask> of their daughter, Aslinn (who is now six years old), with respondent having regular visitation. Beginning in 1992, the parties filed petitions and cross petitions seeking modifications of the prior order: petitioner sought changes in the visitation schedule, initially to facilitate his planned relocation out of State, and later because Aslinn had become enrolled in an area Head Start program, and respondent applied for sole custody and then for joint custody during the pendency of her custody petition. Family Court found that the parties’ circumstances had not changed sufficiently to warrant a change in custody, but that more extensive visitation would be in Aslinn’s best interest. The court also directed petitioner to consult with respondent on matters involving Aslinn’s health care, education, discipline, moral development and travel. Petitioner appeals, contending that the consultation requirement is tantamount to an award of joint legal custody, and that such an arrangement is unworkable given the parties’ continued animosity toward each other. He also argues that the newly ordered visitation schedule improperly deprives him of "quality time” with his daughter and, consequently, must be overturned. We are unconvinced.


The wife requests to change custody from joint to <mask> in her favor. This request warrants an inquiry into whether the best of interests of the children require a change in custody. (Gizzi v Gizzi, 136 AD3d 1405 [4th Dept 2016]; Matter of Dingeldey v Dingeldey, 93 AD3d 1325 [4th Dept 2012].) The husband advances the same claim on opposing facts. Both parties have, in their affidavits, set forth a prima facie case for a sufficient change in circumstances for the court to schedule a hearing on the matter.


Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent. ****** The juvenile court terminated the parental rights of Monica M. (mother) over her now-three-year-old son, Pablo V. On appeal, mother challenges the juvenile court’s (1) denial of her petition to provide reunification services under Welfare and Institutions Code section 3881 and (2) finding that the parent- child bond exception to the termination of parental rights did not apply. Both rulings were within the court’s discretion or supported by substantive evidence, so we affirm. FACTS AND PROCEDURAL BACKGROUND I. Facts Prior to 2018, mother had five children with several men— Cesar (born 2002), Rudy (born 2006), Gabriela (born 2008), Valerie (born 2012), and Winter (born 2016). In a variety of juvenile dependency cases, the juvenile court exerted dependency jurisdiction over these children; ultimately, the court terminated mother’s parental rights over Rudy, Valerie and Winter, and awarded <mask> of Cesar and Gabriela to their fathers.


Between January, 1978 and Donna M. Avery’s death on June 15,1980, the child, Vincent Joseph Lester, continued *822in the physical custody of his father. However, the issue of custody appears to have been far from finally settled. In approximately September, 1979, a custody proceeding was commenced in Family Court, by the decedent, but dismissed, apparently on the basis that the issue of permanent custody was still pending in Supreme Court. Between that time and her death, the decedent sought advice from, at least, two attorneys concerning the issue of custody of her son. Testimony by the petitioner, Alan Avery, to the effect that his wife made almost daily wishes for <mask>, and testimony by Vincent Catlin to the effect that his daughter was attempting to obtain full custody of her son, was uncontroverted.


At the hearing, Mother testified that when Daughter last saw Father on May 18, 2015, Father repeatedly punched Daughter, kicked her, and threw her into a bathtub, causing her to strike her head and lose consciousness before reawakening and sneaking out of the house. Based upon Mother's testimony, the court determined that Mother had proved the allegations of domestic violence in the Petition and, on July 16, 2015, entered its Full Order of Protection preventing Father from contacting or communicating with the children. The court also granted Mother <mask> of the children and child support. The court further granted an automatic one-year renewal of the Full Order of Protection effective July 15, 2016, pursuant to Section 455.516.1


To rebut the presumption, Omar had to show only that, by a preponderance of the evidence, joint or <mask> to him would not be detrimental to A.'s best interest. ( Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1026, 1032, fn. 22, 215 Cal.Rptr.3d 542 ( Jason P . ); Celia S. , supra , 3 Cal.App.5th at p. 662, 207 Cal.Rptr.3d 756.) The legal presumption is not, as S.Y. asserts, "that a parent who has committed an act of domestic violence should not be awarded sole or joint legal or physical custody of a child." Omar's burden was only to persuade the court his custody would not be detrimental to A.'s best interest. ( § 3044, subd. (a) ; see Jason P. , at pp. 1026, 1031, fn. 22, 215 Cal.Rptr.3d 542.) The determination of custody is not to reward or punish the parents for their past conduct, but to determine what is currently in the best interests of the child. ( In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094, 12 Cal.Rptr.3d 356, 88 P.3d 81 ( LaMusga ); Keith R. , supra , 174 Cal.App.4th at p. 1055, 96 Cal.Rptr.3d 298.)


Nevertheless, there are circumstances in which joinder may be appropriate, as in the present case in which Bianka requests an order giving her mother sole legal and physical custody. "The requirements of due process of law are met in a child custody proceeding when, in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard." (In reMarriage of Torres (1998) 62 Cal.App.4th 1367, 1378, 73 Cal.Rptr.2d 344.) While joinder of an alleged parent who lives outside California may not be required in every case in which <mask> is requested, we are hard pressed to think of a circumstance in which it would not be prudent and consistent with principles of due process.


We disagree with Daniel and hold that the circuit court did not render a judgment inconsistent with Montez I and Montez II . In Montez I , we held that given the evidence that Consuela and Daniel could not communicate, the circuit court erred in finding that Daniel had failed to establish a material change in circumstances warranting modification of the joint-custody arrangement. Thereafter, in Montez II , we held that the circuit court failed to execute our mandate in Montez I because the court maintained the same custody arrangement following our remand. We directed the circuit court to make a sole-custody determination. In the instant case, it did not maintain the previous arrangement. The court awarded Consuela <mask> of the children. Thus, Consuela is charged with the decision-making responsibilities, and she and Daniel are no longer required to communicate and cooperate on those decisions. Accordingly, we find no error on this point.


The parties were divorced in April of 1979 with the mother having <mask> and the Father having visitation. During their son’s early years the visitation was regular with the Father visiting frequently when he came to Albany on business trips and the son visited his Father on weekends and for vacations. In December of 1995 the son told the Father that he was gay. The son testified that his Father said to him "he didn’t know how he would be part of his Son’s life and how much of his life”. The Father testified that he told his son he couldn’t accept that lifestyle but he didn’t say he would not see his son. Furthermore, the Father testified that between the declaration of homosexuality by the son and the end of May 1996, his son refused to speak with him and would not see him.


A second consideration warranting denial of prehearing depositions in this case also involves the best interests of this infant child. Without in any fashion prejudging the outcome of this custody battle, it is conceivable that an award of joint custody or an award of <mask> with visitation to the noncustodial parent will result. In either event, this young child will be exposed to the less than charitable feelings, which these parties have toward one *439another as reflected in the affidavits submitted on the underlying application for a change in custody. To the extent that prehearing depositions of the plaintiff and her current husband will add to the unfortunate bitterness and tension between these parties, all to the detriment of this young girl, such should be discouraged and avoided absent a compelling reason.


After trial of the issues but before Family Court’s decision, petitioner twice moved for an order of contempt, claiming that respondent had wilfully violated the parties’ custodial arrangement by failing to adhere to the Christmas 1992 visitation schedule. Family Court (1) awarded <mask> of the children to respondent, finding that joint custody was not an available option in the circumstances, and (2) found that both respondent and petitioner were available for the emotional growth of the children and possessed comparable abilities to provide for such growth, and that the home environment in the care of each parent was positive. Family Court also found that the best interests of the children mandated that petitioner be awarded liberal visitation and set forth an explicit visitation schedule. In a supplemental/amended order which considered petitioner’s contempt motions, Family Court, inter alia, found that respondent wilfully violated petitioner’s rights of visitation, but declined to impose sanctions. Petitioner appeals both the order and the amended order.


A review order, filed on July 26, 2017, found returning joint custody to Jessica was contrary to J.K.1 and J.K.2's welfare, and continuation of <mask> with Claude was in the girls' best interests. The review order noted that Claude had complied with the case plan in that he had maintained the girls in his home, seen to their needs, and was cooperating with DHS.


p roposed child support calculation, which calculated child sup- port for all four children under both a <mask> and a joint custody calculation and then averaged the amounts. The Court of Appeals found no abuse of discretion, recognizing that “there is no one application of the guidelines for the pres- ent situation from which the court could deviate.” 10 Thus, the appellate court stated that “the child support ordered by the district court was not a deviation from the guidelines, but, rather, a flexible solution to the unique custody arrangement present here.” 11 We do not read the Court of Appeals’ opinion as suggest- ing that no calculations are required where a court confronts a hybrid custody situation, and we disapprove of any such read- ing. Nor do we read the Court of Appeals’ opinion as implying that averaging is always appropriate in such a situation. There, the trial court made a calculation and used a methodology employing averaging. In our view, the Court of Appeals simply found no abuse of discretion in the trial court’s approach. Courts differ on how the application of child support guide- lines to particular custody arrangements should be classified. Some courts have determined that the guidelines do not apply; other courts have treated the situation as a deviation from the guidelines. 12 In our view, whether such a situation is viewed as an inability to strictly apply the guidelines or as a deviation is a largely theoretical distinction. [5,6] This court has long recognized that the child support guidelines offer flexibility and guidance, with the understand- ing that not every child support scenario will fit neatly into the calculation structure. 13 As we said shortly after the guidelines were first adopted, “we do not suggest that an appropriate Id. at 214, 928 N.W.2d at 435. Id. at 214-15, 928 N.W.2d at 435. See Annot., 57 A.L.R.5th 389, § 20 (1998). See, Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d 670 (2001); Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W.2d 751 (1992). - 352 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345


It is unclear if the arrangement would be considered voluntary under Maryland law, where in at least one case, a relative's voluntary assumption of responsibility over a minor child resulted in a legal obligation, even though there was no court order awarding custody. (See, e.g., Owens v. Prince George's County Dep't. of Soc. Servs. (2008) 182 Md.App. 31, 957 A.2d 191, 203-204.) In Owens, an aunt took responsibility for her niece when the mother was unwilling and the father was unable to do so, and the administrative law judge concluded that by her actions, she assumed a legal responsibility to her niece such that her subsequent unwillingness to provide shelter was a basis for a child neglect charge. (Ibid . ) We decline to draw a conclusion on this point because the Department focuses its appeal on the nature of Grandmother's relationship to J.H. after the court awarded her <mask>.


In the separation agreement before this court for interpretation, the court notes that the defendant agreed to pay $75 per week for child support and the parties agreed that the plaintiff would have <mask> of the children. The court also notes that the parties intended that the defendant’s duty to pay child support would cease upon the occurrence of certain events, such as when a child "marries or becomes emancipated or self-supporting.” Unfortunately, the parties did not specifically express what effect, if any, a change from sole custody to joint custody would have upon the defendant’s duty to pay child support. Where the agreement is silent termination of child support can be implied under certain circumstances. The very essence and definition of the term "child support” dictates that a child or children must be present to be supported. Based upon the above facts and the totality of *29the separation agreement, this court concludes that the parties intended that the defendant’s duty to pay child support at the agreed amount of $75 per week was conditioned upon the plaintiff having sole custody of the children.


Bennett filed a complaint for divorce and a petition for an order of protection on July 14, 2015, following a domestic-abuse incident that occurred two days earlier, on July 12, 2015. Goodson attacked Bennett with such force that he damaged her jaw and ruptured one of her eardrums. Goodson's children, S.G. and T.G., were in the home during the attack. After a hearing on August 3, 2015, the circuit court entered an order of protection that granted Bennett <mask> of T.G. and prohibited *853Goodson from having any contact with Bennett or T.G. for ten years. The circuit court also entered a ten-year order of protection on the petition of Mollie Yoder, who requested it for herself based on Goodson's conduct during their relationship, as well as for S.G., who was present in the home during Goodson's brutal attack on Bennett. Goodson did not file any appeal from the two ten-year orders of protection.


The beneficiaries urged that Halstead was negligent in permitting the transaction whereby the securities became accessible to each trustee. It will be borne in mind that Wilkinson had <mask> of the fund prior to this transaction and that it, in effect, was Wilkinson’s act giving Halstead 'access to the securities. There had been no actual joint possession of the fund *353and Halstead’s consent to this arrangement, in view of the circumstances, should not be considered negligent.


The facts are, as adduced in evidence: The minor was born July 5, 1875, the parents being Theodore E. Hansen and *184Frances E. Hansen, who had contracted marital relations in September, 1874; the parents did not live happily together, and after a while parted, the husband deserting the wife, as she alleges, leaving with her two children, one of them, the minor, Theodora, aged at that time four years, September, 1879; the mother being in poor circumstances, under the advice of a friend, gave the custody of the child to J. W. Baldwin, the applicant here, and agreed that he should adopt the child; but he did not do so according to law, and subsequently the mother claims that she repented her agreement, and desired to regain the custody of the child; but upon this point there is a conflict of evidence, as Baldwin denies that the mother ever expressed to him a change of mind, but, on the contrary, he swears she always caused him to believe, until the year 1885, that he could have the <mask> of said minor, and that the child has been reared and educated by himself and wife for six years, and that she has received the constant care and attention of his wife, whose sole companion she has been during such period; that they have no child of their own, and that they have become greatly attached to said minor, who reciprocates their attachment; and that in sickness and in health they have treated the minor as if she were their natural born child. The uncontroverted fact is that the applicant, Baldwin, received the child from her mother, and has retained the custody up to this time. On the 11th of March,- 1885, the minor’s mother commenced an action for divorce in this county against the minor’s father, Theodore E. Hansen, and on the 10th of April, 1885, the superior court, department one, Wilson, Judge, rendered a decree of divorce, and awarded the custody of said child to said Baldwin until the further order of the court; subsequently the lady was married to Mr. Fairbanks, a respectable gentleman, residing and doing business in the state of Nevada, where she has since continued to reside. The decree of the court in the divorce suit was modified pending these proceedings, with respect to the custody of the child,, by remitting to this department that question.


The facts necessary to decide the motion are undisputed, and largely established by court orders of which the court takes judicial notice. Leslie B. and Antoinette M. never married, but had five children between the years 1989 and 1997: Freedom, born February 21, 1989; Stephon, born July 26, 1990; Fantashia, born June 22, 1993; Lucinda, born March 3, 1995; and Shaqueal, born December 21, 1997. Orders of filiation recognizing Mr. B. as the father of Freedom, Stephon, Fantashia and Lucinda were entered under docket numbers P-9782/89 (CSET); P-1638-39/96; P-2646-47/96. (It appears that an order of filiation was granted *274in 1989 and again in 1996 for the same child, Freedom.) In 1996 Mr. B. petitioned for custody of the four children Freedom, Stephon, Fantashia and Lucinda, and on July 22, 1996 Judge Sarah Schecter granted him <mask> of those children (petitioner’s exhibit A). (The fifth child, Shaqueal, was not born until 1997.) Ten months later custody was transferred by Judge Schecter to the children’s maternal grandmother by orders dated May 21, 1997, which included orders of visitation for Mr. B. (but not for the children’s mother) (petitioner’s exhibit B).


The custody provision of the property settlement agreement states: “Plaintiff shall enjoy <mask> of the parties’ child whose name and date of birth is as follows: thomas Andrew van orden, born April 15, 1990”. The property settlement agreement also specified the child support and related provisions. Essentially, the parties agreed to opt out of the Child Support Standards Act (Domestic Relations Law § 240 [1-b]; Family Ct Act § 413 [CSSA]) due to the fact that defendant was unemployed at the time of the execution of the agreement. The parties anticipated, however, that once the defendant was employed, they would abide by CSSA. Additionally, the 1992 agreement provided that defendant would reimburse plaintiff for half of the cost of plaintiff’s increased health insurance premium which she incurred as a result of having to place the parties’ child on her health insurance policy.


The court issued its decree on June 21, 2017, in which it granted Jose an absolute divorce and granted <mask> of the children to Maria. It ordered Jose to pay $346 biweekly in child support and $100 per pay period in spousal support, both effectuated through wage assignment. The court awarded Maria the couple's home and mortgage and awarded Jose title to the Nissan and Honda vehicles. The court found that neither party could afford the couple's 2016 Chevrolet Traverse and ordered that it be immediately sold or returned to the dealership. The parties were ordered to evenly split the debt remaining on the truck after the sale, with Maria getting credit for the monthly payments she had made on the vehicle. The court awarded Jose "the marital fraction, if any there be, of Ms. Garcia's pension with the Little Rock School District."