In February 2001, the parents of a daughter had been awarded joint custody of her. In October 2009, the mother filed an application seeking to hold the father in contempt for violating a provision of the custody order that prohibited either party from smoking in the child’s presence or allowing a third party to do so. The father alleged that he did not willfully violate the order because, while he did admit smoking in the car in the child’s presence, he claimed it happened on only a single occasion. He also claimed that, while he did smoke in his bedroom when the child was in the house, he did not realize that he had violated the court’s order. The Supreme Court of New York, Appellate Division, Third Department, ruled that, “[o]n these facts, we cannot conclude that Family Court abused its discretion in finding that the father did not willfully violate the custody order.” Thus, the father was not held in contempt.
2011 NY Slip Op 3705, 2011 N.Y. App. Div. LEXIS 3618.