Matter of Kallop v. Poserina; Matter of Poserina v. Kallop
Attorneys and Parties
Brief Summary
Family law—initial custody determination, relocation, and parental access scheduling under Family Court Act article 6 [statute governing custody and visitation proceedings].
Family Court awarded the father sole legal and residential custody, denied the mother’s custody petition, and set the mother’s parental access to be as mutually agreed by the parties.
The provision delegating the mother’s parental access schedule to the parties’ mutual agreement was deleted; the matter was remitted to set a specific schedule.
Courts must set a clear parental access schedule; leaving visitation solely to the parties’ mutual agreement is improper. The custody award to the father was supported by a sound and substantial basis in the record and was otherwise affirmed.
Background
The parties married in 2017 and have one child (born 2015). After the father commenced divorce proceedings in 2020, the mother moved to Florida; the father remained in New York. In September 2021, the mother petitioned for sole custody. On February 7, 2022, the Family Court granted the mother temporary custody and permission to temporarily relocate the child to Florida, with specified access for the father. In March 2023, the father filed his own petition for sole custody. The child has lived with the father in New York since June 2023. The mother sought to relocate with the child to West Virginia. In a December 7, 2023 order, the Family Court granted the father sole legal and residential custody, denied the mother’s petition, and directed that the mother’s parental access be as mutually agreed by the parties. The mother appealed. Proceedings were brought pursuant to Family Court Act article 6 [statute governing custody and visitation proceedings].
Lower Court Decision
Awarded the father sole legal and residential custody, denied the mother’s petition, and directed that the mother’s parental access would be determined by the parties’ mutual agreement.
Appellate Division Reversal
Modified on the law by deleting the mutual-agreement-only visitation provision and remitting for prompt entry of a specific parental access schedule consistent with the child’s best interests; otherwise affirmed. The interim mutual-agreement arrangement remains in effect until a new schedule is set.
Legal Significance
Reaffirms that in an initial custody determination where relocation is at issue, relocation is one factor among many in assessing the child’s best interests, and substantial deference is due to the Family Court’s credibility findings. Clarifies that courts must set concrete parental access schedules and may not delegate visitation entirely to the parties’ mutual agreement.
Custody to the father was upheld based on the child’s stable home and family support in New York, and the court must issue a specific parental access schedule rather than leaving visitation to mutual agreement.