A mother who “deliberately and unjustifiably frustrated” a father’s attempts to visit his child was appropriately stripped of child support and primary custody, an appellate panel in Albany has held.
The Appellate Division, Third Department, unanimously affirmed a Schuyler County Family Court judge in a case where the custodial mother had repeatedly hindered her estranged husband’s efforts to establish relations with his daughter, even though the father made no attempt to enforce his visitation rights for six years.
Luke v. Luke, 510880, centers on a child born in 2001 to Melvin W. and Heidi L. Luke.
The Lukes, who are still married, separated before the child’s birth. After a 2003 DNA test confirmed Mr. Luke’s paternity, the parties stipulated to joint custody, with the mother retaining physical custody and the father entitled to visitation on alternate weekends. A support order also was entered against the father.
Records show that the agreed-upon visits occurred for only one or two months. After the father moved to New Jersey, the Family Court issued a default order awarding Ms. Luke sole custody.
Mr. Luke moved back to Schuyler County in 2007, and in 2009 sought the Family Court’s help in locating his child and wife, who had moved several times.
After a hearing, the court awarded the parties joint custody, with the child spending four nights with the father, and terminated the father’s support obligation.
The Third Department noted that while this matter was pending, Ms. Luke moved four times without informing Mr. Luke. At one point she moved into a safe house to escape the domestic violence of a boyfriend that was witnessed by the child, repeatedly violated visitation orders and assigned custody of the child to her boyfriend’s adult daughter without consulting Mr. Luke. The court observed that the boyfriend’s daughter failed to bring the child to visits and even kept her out of school on Fridays, when Mr. Luke was supposed to pick her up for weekend visits.
“At the time of the hearing…the child had not seen her mother for almost two months, and the mother testified that she called only when she had minutes on her phone,” the panel said in an opinion by Justice William E. McCarthy (See Profile). “Despite this constantly changing situation, the mother denied that she made any poor choices that caused instability in the child’s life.”
The court said that while the father “lost contact with his daughter for several years and did not adequately explain why he took so long to re-establish a connection,” by the time of the hearing he had been working for more than a year to connect with his daughter.
“The record supports the finding that the mother deliberately and unjustifiably frustrated the father’s visitation, moving without notifying the father and attempting to informally transfer custody to another person…without informing the father,” Justice McCarthy wrote in an opinion joined by Justices Karen K. Peters (See Profile), John A. Lahtinen (See Profile), Leslie E. Stein (See Profile) and Elizabeth A. Garry (See Profile).
Appearing were Martha N. Hertzberg of Ithaca for Mr. Luke; Lisa K. Miller of McGraw for Ms. Luke; and Steven J. Getman of Ovid for the child.
In another appeal, the Third Department held that a trial judge did not err in failing to order a competency hearing for a mentally ill defendant who cut off another man’s penis and gouged out his eye.
People v. Klages, 103473, began in early 2008 when Harry E. Klages II was accused of torturing and dismembering a man in St. Lawrence County.
Mr. Klages filed notice of intent to present psychiatric evidence, but later pleaded guilty to two counts of first-degree assault in exchange for consecutive 19-year sentences. He also agreed to pay restitution of $157,000 for the victim’s medical expenses.
The Third Department noted that Mr. Klages’ responses during the plea allocution were “intelligent and coherent,” and observed that the defendant told the court that his medication did not interfere with his ability to understand and participate in the proceeding.
Additionally, the court said, Mr. Klages participated prior to the plea “in a reasonable and intelligent manner” and never indicated an inability to understand the nature of the proceeding or the charges.
“While we are obviously aware of the horrendous nature of the crimes for which defendant stands convicted, as well as his history of mental illness, we do not find, given all that was before County Court at the time defendant entered his plea, that it erred by not ordering a psychiatric examination to determine defendant’s competency,” Justice E. Michael Kavanagh (See Profile) wrote for the panel in affirming St. Lawrence County Judge Jerome J. Richards (See Profile).
John A. Cirando of Syracuse represented Mr. Klages.
Jonathan L. Becker of Canton appeared for the prosecution.
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