ALBANY – A mother who swears and yells at her 10-year-old son and called him an "asshole" on Facebook because that is what "he is" and said it is important that her Facebook friends know the truth demonstrated a "lack of insight," an Albany appellate panel has held in awarding a father sole custody.
The Appellate Division, Third Department, last week agreed with St. Lawrence County Family Court Judge Barbara Potter, who has since retired, that joint custody is no longer viable and awarded sole custody of the three children to the father.
Matter of Melody M. v. Robert M., 513361, began when the mother sought to change the visitation schedule and the father sought sole custody.
Records show that the oldest child suffers from mental health issues and undergoes counseling. The mother does not participate in the counseling because she does not like the counselor, uses physical force to restrain the boy, and tends to yell at her son and disparage him, according to court records.
Potter declined to alter the visitation schedule, awarded the father sole custody and imposed an order of protection barring the mother from posting communications about the children on any social network site. The mother appealed, and the Third Department unanimously affirmed.
"[T]here was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, so as to justify the court’s issuance of the order of protection," Justice Robert Rose (See Profile) wrote for the court.
John Cirando of Syracuse argued for the mother. The father was represented by Luke Babbie of Poissant, Nichols & Grue in Malone and Verner Ingram Jr. of Potsdam appeared for the children.
Cirando said the order of protection barring the mother from mentioning her children on social media has potential negative consequences.
"It is unfortunate that it prevents her from telling all of her friends that her son hit a game-winning home run in a baseball game or scored the winning goal or was on the honor roll," Cirando said.
Ingram declined comment. Babbie was not immediately available.
A Third Department panel also found an Albany attorney who claims she was a stalking victim and filed an unsuccessful claim with the state Office of Victim Services for reimbursement of security and surveillance devices is entitled to a new hearing because she was denied the opportunity to cross-examine witnesses.
Kathryn Barber filed a claim in 2008 to recover the cost of various security measures undertaken after she was a victim of stalking and harassment. The Office of Victim Services denied the claim on the grounds that Barber had not proven that a crime had been committed. Barber appealed administratively, but a three-member panel rejected the claim.
In a memorandum by Presiding Justice Karen Peters (See Profile), the panel found "substantial evidence in the record to support" the denial of the claim, but said reversal was required for a procedural error. The court said that while Barber was waiting in the lobby for her appeal hearing to begin, the panel took the testimony of a witness in her absence.
"Petitioner was only invited to attend the hearing following the conclusion of this witness’s testimony and, after providing her own testimony, she was asked to leave the hearing, after which testimony was taken from a second witness," Peters wrote in Barber v. New York State Office of Victim Services, 513256. "As petitioner was denied her right of cross-examination, respondent’s determination must be annulled and the matter remitted for a new hearing."
Barber appeared pro se. Assistant Attorney General Owen Demuth defended the Office of Victim Services.
John Watson, general counsel to the Office of Victim Services said, consistent with the ruling, Barber will be provided an opportunity to pursue a new hearing.
Barber was not immediately available for comment.
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