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FATHER’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS CUSTODY MATTER SHOULD NOT HAVE BEEN DENIED, FATHER DEMONSTRATED HE WAS ILL AND, BECAUSE CUSTODY WAS AWARDED TO A NON-PARENT IN HIS ABSENCE BASED UPON UNPROVEN ALLEGATIONS, HE HAD A MERITORIOUS DEFENSE.

The Third Department determined Family Court should have granted father’s motion to vacate a default judgment in a custody matter. Custody was awarded to a non-parent (aunt) by stipulation at the proceeding father didn’t attend. Father let his attorney know he was ill and his attorney appeared. Father demonstrated he was ill and, because custody was awarded to a non-parent in his absence based on unproven allegations, he had a meritorious defense:

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With these concerns in mind, we turn to the determination of the father’s motion to vacate the default order. “[A] party who seeks to vacate a default [order] must demonstrate a reasonable excuse for his or her failure to appear and a meritorious defense” … . We find that the father met this burden. The father furnished an affidavit in which he explained that he has suffered from four heart attacks since 2009, with the latest episode requiring hospitalization only five months before the trial date. At the time of the scheduled trial, he was under the care of a cardiologist and was taking four prescribed medications for the condition. On the day prior to the trial, he was experiencing severe chest pains and dizziness. In accordance with his physicians’ advice, he took two doses of nitroglycerine and became disoriented so, that night, the father left a message with his attorney reporting that he would not be able to attend the trial. He averred in his affidavit that he was unable to attend the trial due to this heart condition. Corroborating these representations are copies of medical records from his earlier hospitalization, which confirmed that he suffered from congenital heart disease and underwent open heart surgery as an infant. The records included the diagnoses of cardiomyopathy, high blood pressure and angina, identification of his attending physicians, a listing of his prescribed medications and printouts of his electrocardiograms. We find that Family Court’s rejection of proof that “plausibly supports” the father’s contention that he was ill on the day of the trial was an abuse of discretion … .

Turning to the father’s proffer of a meritorious defense, we note that, “absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances,” a parent has a superior claim of custody of his or her children … , and, in a custody case, “[t]he nonparent bears the heavy burden of establishing extraordinary circumstances” … . Family Court accepted the unproven allegations of the petition and the stipulation by the aunt and the mother, none of which provided a factual basis for the custody determination. We also note that, in regard to the best interests of the child analysis, Family Court was not presented with evidence “to enable it to undertake a comprehensive independent review of the children’s best interests”… . Mindful that the ultimate issue in this case is the best interests of the children … , and that visitation with a noncustodial parent is presumed to be in their best interests … , we find that the father’s challenges to the amended petition constitute meritorious defenses. Accordingly, these findings lead us to conclude that Family Court improvidently exercised its discretion in denying the father’s motion to vacate the default order.  Matter of Hannah MM. v Elizabeth NN., 2017 NY Slip Op 04504, 3rd Dept 6-8-17

 

FAMILY LAW (CUSTODY, DEFAULT, FATHER’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS CUSTODY MATTER SHOULD NOT HAVE BEEN DENIED, FATHER DEMONSTRATED HE WAS ILL AND, BECAUSE CUSTODY WAS AWARDED TO A NON-PARENT IN HIS ABSENCE BASED UPON UNPROVEN ALLEGATIONS, HE HAD A MERITORIOUS DEFENSE)/CUSTODY (FAMILY LAW, DEFAULT, FATHER’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS CUSTODY MATTER SHOULD NOT HAVE BEEN DENIED, FATHER DEMONSTRATED HE WAS ILL AND, BECAUSE CUSTODY WAS AWARDED TO A NON-PARENT IN HIS ABSENCE BASED UPON UNPROVEN ALLEGATIONS, HE HAD A MERITORIOUS DEFENSE)

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