Robert G. Smith, PLLC

Vexatious Litigation Rule As Gatekeeper In Parental Access Disputes

Public policy generally mandates free access to the courts.  But a child custody/ visitation litigant may be deemed to forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will. In those cases, when supported by evidence in the record, the Courts may fashion orders requiring a prior written application for permission to sue.   Such an order was the basis for dismissal of a proceeding by the Appellate Division, First Department on March 31, 2016 in Matter of Amaury Alfonso N. v Zaida Iris R.. The father brought a proceeding to "enforce" a child custody order, presumably seeking visitation.   However the father did not appeal from a three year old order requiring prior court permission before instituting any more child custody applications.  That order, which was reaffirmed by the court three years later, had been acknowledged on the record by the father. The Appellate Division, First Department cited Second Department precedent, Matter of Pignataro v Davis, 8 AD3d 487, 489 [2d Dept 2004]; and Sassower v Signorelli, 99 AD2d 358, 359 [2d Dept 1984]).  The Appellate Division panel included two former matrimonial judges, Justices Gische and Gesmer, as well as Justices Tom (P.J.), Sweeny and Manzanet-Daniels.  

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