Introduction

This Third Department decision resolves a multi-faceted appeal arising out of intertwined Family Court and Supreme Court proceedings involving custody, child support, classification of federal stimulus payments, and judicial recusal. The parties, married in 2006, separated in 2017 and initially shared legal custody with the father as primary physical custodian. Following escalating cross-petitions beginning in 2020, the proceedings were consolidated into the matrimonial action by consent and tried in Supreme Court (Broome County, Rich Jr., J.).

The Supreme Court awarded the mother sole legal and primary physical custody after a seven‑day hearing and a Lincoln hearing, set the father’s parenting time at three days per week, imputed income to the father for child support purposes, and directed him to turn over to the mother approximately $5,200 he received as a CARES Act stimulus (advance refund of the 2021 Recovery Rebate Credit). The father, appearing pro se, appealed. The mother did not appear on appeal. Attorneys for the middle and youngest children supported the custody order.

Key issues on appeal included: (1) whether the custody modification was supported by a sound and substantial basis; (2) whether procedural and evidentiary rulings (including the absence of a forensic evaluation and the conduct of a Lincoln hearing) were proper; (3) whether income imputation for child support was warranted; (4) whether federal CARES Act stimulus received post‑commencement could be turned over as marital property or child support; and (5) whether recusal should have been granted.

Summary of the Judgment

• Appeal posture: The appeal from the December 2021 custody order was dismissed as subsumed by the later judgment of divorce, but the custody issues were reviewable through the judgment. The court treated the appeal as taken from the final judgment despite a notice referencing the decision and order (CPLR 5520[c]).
• Custody: Affirmed. Although Supreme Court did not expressly find a change in circumstances, the Appellate Division exercised its broad factual review power and found one, citing the parents’ breakdown in communication and the father’s interference with the children’s relationship with the mother. Granting the mother sole legal and primary physical custody and giving the father thrice‑weekly parenting time had a sound and substantial basis.
• Procedural/evidentiary issues: No abuse of discretion in declining to order a forensic evaluation; the record was developed through extensive testimony, documentary evidence, and a Lincoln hearing. Conducting a Lincoln hearing was appropriate, especially given the children’s ages. No reversible evidentiary error was identified.
• Child support (income imputation): Affirmed. The father was a licensed, practicing attorney who reported income below minimum wage; the court permissibly imputed income based on his earning capacity, rejecting “unrealistic” expense claims.
• Classification of CARES Act stimulus: Modified. The directive requiring the father to turn over approximately $5,200 received as an advance refund for the 2021 Recovery Rebate Credit (CARES Act) was reversed. The payment was received post‑commencement and therefore was not marital property (Domestic Relations Law § 236[B][1][c]); it was also not child support because it is an advance refund of a tax credit, not a payment made “for the benefit of the children.”
• Recusal: Affirmed. No abuse of discretion; no bias, reliance on extrajudicial information, or prejudgment was shown.

Result: Judgment modified to vacate the stimulus turnover; otherwise affirmed. Appeal from the intermediate custody order dismissed.

Analysis

Precedents Cited and Their Role

1) Custody modification framework and appellate review

• Matter of Nicole B. v Franklin A., 210 AD3d 1351 (3d Dept 2022), lv dismissed 39 NY3d 1092 (2023), and Matter of Debra YY. v Michael XX., 234 AD3d 1021 (3d Dept 2025): The court reiterated that a party seeking modification must first show a “change in circumstances” since the prior order to trigger a best‑interests analysis.
• Matter of Joshua PP. v Danielle PP., 205 AD3d 1153 (3d Dept 2022), lv denied 39 NY3d 901 (2022): Even if the trial court does not expressly find a change in circumstances, the Appellate Division’s factual review power allows it to make that determination independently—precisely what the court did here.
• Matter of Samantha E. v Nicholas F., 233 AD3d 1295 (3d Dept 2024), and Matter of Sarah I. v Ian J., 233 AD3d 1334 (3d Dept 2024): Enumerate the best‑interests factors—home quality, stability, compliance with prior orders, willingness to foster the other parent’s relationship, and capacity to meet the children’s physical, emotional, and intellectual needs—applied here to credit the mother’s nurturing approach and fault the father’s interference and rigid, pressure‑laden parenting.
• Matter of Michelle EE. v John EE., 235 AD3d 1121 (3d Dept 2025) and Matter of Richard CC. v Lacey DD., 230 AD3d 1389 (3d Dept 2024): Reaffirm broad trial‑level discretion and the “sound and substantial basis” deference owed to custody findings; that deference carried the day.
• Matter of Laura E. v John D., 216 AD3d 1274 (3d Dept 2023) and Matter of Thomas FF. v Jennifer GG., 143 AD3d 1207 (3d Dept 2016): Breakdown of parental communication as a qualifying change in circumstances. The court relied on this line to cross the threshold here.

2) Children’s out‑of‑court statements and corroboration

• Family Ct Act § 1046(a)(vi): Permits reliance on children’s out‑of‑court statements when corroborated.
• Matter of David JJ. v Tara KK. (3d Dept 2025) and Matter of Sarah QQ. v Raymond PP., 210 AD3d 1321 (3d Dept 2022): Confirm that corroboration can include photos, text messages, and testimony from professionals. Here, the children’s statements about the father’s harmful conduct were corroborated by photographs, parental text messages, and the father’s own mental‑health counselor.

3) Forensic evaluations and Lincoln hearings

• Family Ct Act § 251(a): Authority to order a forensic evaluation lies in the court’s discretion. Given the extensive testimonial and documentary record plus a Lincoln hearing, there was no abuse of discretion in declining a forensic evaluation.
• Matter of Kelly AA. v Christopher AA. (3d Dept 2025) and Matter of Pedro C. v Michelle R., 220 AD3d 561 (1st Dept 2023): Support the discretionary decision not to order a forensic evaluation where the record is already robust.
• Matter of Samantha WW. v Malek XX., 217 AD3d 1081 (3d Dept 2023) and Matter of Gerber v Gerber, 133 AD3d 1133 (3d Dept 2015), lv denied 27 NY3d 902 (2016): Endorse the Lincoln hearing as a preferred method to ascertain the wishes of older children—appropriate here given the children’s ages.

4) Harmless procedural/evidentiary error review

• Matter of Jolynn W. v Vincent X., 85 AD3d 1217 (3d Dept 2011), lv denied 17 NY3d 713 (2011) and Matter of Brown v White, 3 AD3d 743 (3d Dept 2004): Support affirmance where the custody determination rests on admissible evidence and alleged errors do not warrant reversal; contrasted with authorities like Matter of Richard SS., 55 AD3d 1001 (3d Dept 2008) and Matter of Mary S., 279 AD2d 896 (3d Dept 2001), where reversible evidentiary error was present.

5) Income imputation for child support

• McGovern v McGovern, 218 AD3d 1067 (3d Dept 2023) and Matter of Susko v Susko, 181 AD3d 1016 (3d Dept 2020): Allow imputation of income based on earning capacity upon an articulated, record‑supported basis. The court adhered to this standard, using the father’s own testimony about his hourly rate and practicable hours while fulfilling ethical duties.
• Matter of Treglia v Varano, 222 AD3d 1299 (3d Dept 2023): Reinforces deference to credibility findings underlying imputation decisions.
• Matter of Woodcock v Welt, 212 AD3d 1064 (3d Dept 2023) and Yezzi v Small, 206 AD3d 1472 (3d Dept 2022): Uphold imputation where reported self‑employment income appears artificially depressed or expenses are “unrealistic.”

6) CARES Act stimulus classification

• 26 USC § 6428 (as enacted by Pub L 116‑136, the CARES Act): Creates the Recovery Rebate Credit; payments are “advance refunds” of a tax credit.
• Domestic Relations Law § 236(B)(1)(c): Marital property generally includes property acquired during the marriage and before the commencement of a matrimonial action; post‑commencement acquisitions are separate property.
• Matter of Josefina O. v Francisco P., 213 AD3d 1158 (3d Dept 2023): Held that CARES Act stimulus payments are not paid “for the benefit of the minor children” but are advance refunds of a personal tax credit; thus they are not child support to be turned over.
• Application here: Because the father received the stimulus after the matrimonial action commenced, it was not marital property under DRL § 236(B)(1)(c). Nor could it be recharacterized as child support: per Josefina O., it remains the taxpayer’s tax credit refund. The Third Department therefore reversed the turnover directive for approximately $5,200.

7) Recusal standards

• Judiciary Law § 14: Situations of mandatory disqualification are narrow; otherwise, recusal is discretionary and the judge is the “sole arbiter” unless there is demonstrable bias or impropriety.
• Kopko v Kopko, 229 AD3d 974 (3d Dept 2024), appeal dismissed 42 NY3d 1086 (2025), and Heber v Heber, 237 AD3d 1276 (3d Dept 2025): Affirm the high threshold for recusal without statutory disqualification; critical remarks to both parties and fair consideration of admissible evidence do not evince bias.
• Matter of Patrick UU. v Frances VV., 200 AD3d 1156 (3d Dept 2021); compare Matter of Nicole B. v Franklin A., 210 AD3d at 1354‑55: The record here did not show prejudgment or reliance on extrajudicial facts; denial of recusal was proper.

Legal Reasoning in Depth

A. Custody and parenting time

The court began by rectifying the absence of an express “change in circumstances” finding. Exercising its factual review authority, it found such a change based on the parents’ deteriorated co‑parenting relationship undermining their ability to communicate for the children’s welfare. While both parents at times failed to promote the other’s relationship, the father’s pattern of interference—treating the children’s time with the mother as a “privilege” rather than a right—featured prominently. The court also weighed the father’s overly rigid, achievement‑centric approach against the children’s mental health, noting evidence that the pressure and his conduct harmed their emotional well‑being and caused them to resist contact.

The children’s out‑of‑court statements about the father’s conduct were deemed reliable through corroboration—photos, parental texts, and testimony from the father’s own counselor—as permitted by Family Ct Act § 1046(a)(vi). Against this, the mother was credited for ensuring the children’s participation in mental‑health counseling and providing a nurturing environment.

With a fully developed record—seven hearing days, extensive exhibits, and a Lincoln hearing—the Appellate Division deferred to Supreme Court’s credibility assessments and discretionary balancing of best‑interests factors, affirming the award of sole legal and primary physical custody to the mother and a thrice‑weekly parenting schedule for the father.

B. Procedural and evidentiary rulings

Although the parties had discussed forensic evaluations, no formal motion was made. In any event, Supreme Court’s decision not to order one fell within its discretion given the robust record and the Lincoln hearing—an especially appropriate tool given the children’s ages. The court also rejected claims of procedural or evidentiary error, noting that the custody decision rested on admissible proof and that any alleged errors did not warrant reversal.

C. Child support and income imputation

Supreme Court was not bound by the father’s self‑reported income, especially where his claimed net was below minimum wage despite his status as a licensed attorney. Finding his reported business expenses “unrealistic,” the court imputed income using his stated hourly rate and a realistic weekly workload consistent with professional ethics. The Third Department deferred to these credibility findings and affirmed the imputation and the resulting child support order.

D. CARES Act stimulus: not marital property and not child support

This is the decision’s most significant doctrinal clarification. The Third Department held that stimulus payments received after commencement of the matrimonial action are not marital property under DRL § 236(B)(1)(c). Further, following its reasoning in Matter of Josefina O., the court emphasized that such payments are the recipient’s “advance refund” of a federal tax credit (26 USC § 6428) rather than sums paid “for the benefit of the minor children.” Consequently, a trial court may not direct turnover of those funds either as equitable distribution or as child support. The judgment was modified to vacate the approximately $5,200 turnover directive.

E. Recusal

Absent a Judiciary Law § 14 ground, the trial judge’s decision on recusal is discretionary. The record showed even‑handed admonitions and reliance on admissible evidence; there was no bias or prejudgment. The denial of recusal was therefore a proper exercise of discretion.

Impact and Forward‑Looking Considerations

1) Classification of federal stimulus and similar tax credits

• Clear rule for practitioners: In matrimonial cases, CARES Act/Recovery Rebate payments received after the commencement date are separate property and cannot be compelled to be turned over as child support or equitable distribution. Counsel should assess the precise date of receipt relative to commencement and frame property classifications accordingly.
• Broader tax‑credit implications: The reasoning—classifying such payments as the taxpayer’s advance refund of a credit—may inform treatment of analogous federal or state refundable credits. However, credits specifically legislated as benefits “for the child” (e.g., certain child‑focused programs) may raise distinct issues; careful statutory analysis remains essential.

2) Custody litigation trends

• Best interests centered on emotional well‑being: The opinion underscores that academic achievement goals must not eclipse the children’s mental health. Overly rigid parenting, particularly when coupled with interference in the children’s relationship with the other parent, can tip the scales toward awarding sole custody.
• Change in circumstances via communication breakdown: The court reaffirms that a serious erosion of parental communication suffices to revisit custody arrangements—an important threshold for modification motions.
• Corroborated child statements: Photos, text messages, and therapist testimony can corroborate children’s statements under FCA § 1046(a)(vi), strengthening the evidentiary basis for custody findings.
• Lincoln hearings remain central: Particularly with adolescent children, Lincoln hearings are favored to capture their wishes while protecting them from the adversarial process.

3) Support calculations for self‑employed professionals

• Income imputation will be enforced: Courts will look past self‑reported figures where lifestyle, credentials, or implausible expense claims indicate suppressed earnings. Detailed, credible financial evidence is crucial for any self‑employed litigant.

4) Recusal motions

• High bar absent statutory grounds: Critical comments from the bench or adverse rulings are insufficient; parties must demonstrate actual bias or impropriety. This decision reinforces the narrow scope for successful discretionary recusal appeals.

5) Procedural lessons

• Consent limits appellate review: Parties who consent to consolidation (or other orders) and fail to move to vacate cannot later claim error on appeal (CPLR 5511).
• Appeal from the judgment: Intermediate orders typically merge into the final judgment; appealing the judgment preserves review of those orders (CPLR 5501[a][1]).

Complex Concepts Simplified

• Change in circumstances: A material development after the last custody order (e.g., severe communication breakdown) that justifies a fresh look at custody.
• Best interests of the child: A holistic, child‑focused test weighing stability, parental cooperation, home environment, and each parent’s ability to meet the child’s physical, emotional, and educational needs.
• Lincoln hearing: A private, in‑camera interview of a child by the judge (without parents present) to ascertain the child’s wishes without subjecting them to open court.
• Corroboration under FCA § 1046(a)(vi): Children’s out‑of‑court statements can support findings if backed by independent evidence like texts, photos, or professional testimony.
• Income imputation: When reported income is unreliable or unreflective of earning capacity, a court may assign a realistic income based on skills, credentials, market rates, and credible evidence.
• Marital property vs. separate property: Property acquired after the matrimonial action is commenced is generally separate property and not subject to equitable distribution (DRL § 236[B][1][c]).
• CARES Act stimulus (Recovery Rebate Credit): A tax credit paid as an “advance refund” to the taxpayer; it is not a payment earmarked for children and therefore cannot be forcibly redirected as child support.
• Recusal: Removal of a judge from a case. Mandatory only in narrow circumstances; otherwise discretionary and rarely granted absent proof of bias or impropriety.

Conclusion

Ricky SS. v. Christine SS. delivers two headline takeaways. First, it cements—now within a matrimonial judgment context—that federal CARES Act stimulus payments received after the commencement of a divorce are separate property and cannot be re‑purposed as child support or equitable distribution. This clear classification will guide future property and support disputes involving refundable tax credits.

Second, the decision reaffirms established but critical custody doctrine: a breakdown in parental communication satisfies the threshold for modification; trial courts receive great deference where their best‑interests analysis is supported by admissible, corroborated evidence; and children’s mental health and the parents’ willingness to foster the other parent’s relationship are decisive factors. Lincoln hearings remain the preferred vehicle to hear from older children, and forensic evaluations are not mandatory where the record is otherwise robust.

For practitioners, the case underscores rigorous financial scrutiny in child support cases involving self‑employed professionals, the limited prospects of recusal without concrete evidence of bias, and the procedural importance of how and when appeals are taken. In all, the Third Department offers a careful, doctrinally coherent opinion with a practical rule of classification for federal stimulus funds and a principled application of best‑interests custody law.