You are here: / / IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST...
, ,

IN ORDERING A NEW HEARING ON MOTHER’S PETITION TO RELOCATE, THE FIRST DEPARTMENT NOTED THE INADEQUACY OF THE PROOF PRESENTED BY ASSIGNED COUNSEL AT THE FIRST HEARING AND CONSIDERED “NEW” FACTS WHICH WERE NOT PART OF THE RECORD ON APPEAL (FIRST DEPT). ​

The First Department, reversing Family Court over a detailed and comprehensive dissent, determined mother was entitled to a new hearing on her petition to relocate to North Carolina because her assigned counsel did not adequately present evidence of the financial necessity of the move. The dissent would grant the petition to relocate based on the existing record:

… [A]s the attorney for the child argues on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted by order entered November 15, 2022 and continued by order entered April 20, 2023), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. Specifically, … the mother attests that counsel failed to adequately present evidence of the financial necessity that supports her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that have occurred since the court’s September 6, 2022 order, we reverse the court’s denial of the mother’s petition and remand for a new hearing to determine what is in the child’s best interests … . Although the facts warranting a new hearing are outside the record on appeal, given that changed circumstances have particular significance in child custody matters, we take notice of the new facts to the extent they indicate that the record is no longer sufficient to determine the mother’s relocation petition … . Matter of Emily F. v Victor P., 2023 NY Slip Op 04634, First Dept 9-14-23

Practice Point: Here the First Department considered “new” facts which were  not part of the record on appeal in determining there should be a new hearing on mother’s petition to relocate.

 

You might also like
ALTHOUGH RESPONDENT WAS NOT MARRIED TO THE TENANT OF RECORD, THEIR RELATIONSHIP EXHIBITED THE CARE AND SELF-SACRIFICE OF A FAMILY RELATIONSHIP, HOUSING COURT SHOULD HAVE FOUND THAT RESPONDENT WAS A FAMILY MEMBER ENTITLED TO SUCCESSION RIGHTS IN THE RENT-STABILIZED APARTMENT (FIRST DEPT).
COMPENSATION FOR A GUARDIAN UNDER THE MENTAL HYGIENE LAW IS NOT CALCULATED ACCORDING TO THE FORMULA IN THE SURROGATE’S COURT PROCEDURE ACT, GUARDIAN ENTITLED ONLY TO REASONABLE COMPENSATION.
MEETINGS OF NYC SCHOOL LEADERSHIP TEAMS ARE SUBJECT TO THE OPEN MEETINGS LAW.
THE BUILDING OWNER HAD, BY CONTRACT, RELINQUISHED ALL RESPONSIBILITY FOR ELEVATOR MAINTENANCE TO DEFENDANT AMERICAN ELEVATOR AND WAS THEREFORE NOT LIABLE FOR THE ALLEGED ELEVATOR MALFUNCTION; THE PLAINTIFF ALLEGED THE INNER GATE CLOSED ON HER SHOULDER, PINNING HER, AND THE ELEVATOR THEN DESCENDED; A QUESTION OF FACT PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE WAS RAISED (FIRST DEPT). ​
NYC DEPARTMENT OF HEALTH EXCEEDED ITS REGULATORY AUTHORITY WITH RESPECT TO MANDATING INFLUENZA VACCINATIONS FOR CERTAIN PRE-SCHOOL PROGRAMS.
No Element of Intent in Constructive Possession of Contraband
Breach of Contract Not a Defense to Action on Promissory Note.
Dismissal of Federal Action Precluded Related Action in State Court—Res Judicata, Privity under Res Judicata Doctrine, Effect of Initial Forum Choice, and “First-in-Time” Rule Discussed

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

REPORTER WHO INTERVIEWED A MURDER SUSPECT WAS ENTITLED TO A WRIT OF PROHIBITION... DEFENDANT’S ANSWER IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN STRUCK...