You are here: / / FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE BEFORE IT TO GRANT FATHER’S...
,

FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE BEFORE IT TO GRANT FATHER’S PETITION FOR CUSTODY WHEN MOTHER FAILED TO APPEAR, MOTHER’S MOTION TO VACATE THE DEFAULT ORDER SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Family Court, determined the court did not have sufficient evidence before it to grant father’s petition for custody when mother did not appear:

While the decision to grant or deny a motion to vacate a default rests in the sound discretion of the court, “default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously” … .

Although the mother did not demonstrate a reasonable excuse for her default in the change of custody case, she had a meritorious defense. The children have resided primarily with her, and insufficient evidence was submitted to make an informed change of circumstances determination (see Family Ct Act § 467[b][ii]) that serves the best interests of the children … .

Also, the court failed to sua sponte appoint an attorney for the children, which, based upon the insufficient evidence it had to make an informed best interests determination, would have been advisable … . Matter of Abel A. v Imanda M., 2018 NY Slip Op 09000, First Dept 12-27-18

 

You might also like
THE EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO STAB THE VICTIM WAS LEGALLY INSUFFICIENT (FIRST DEPT).
THE UNIFIED COURT SYSTEM’S DENIAL OF COURT EMPLOYEES’ APPLICATIONS FOR RELIGIOUS EXEMPTIONS FROM THE COVID VACCINE MANDATE AFFIRMED (FIRST DEPT). ​
HOMEOWNER EXEMPTION APPLIED TO THE CHURCH IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION STEMMING FROM A FALL FROM A SCAFFOLD, FAILURE TO PLEAD THE EXEMPTION AS A DEFENSE DID NOT PRECLUDE RAISING IT IN A SUMMARY JUDGMENT MOTION, ARCHDIOCESE WAS NOT AN AGENT OF THE OWNER, NO LABOR LAW 200 LIABILITY BECAUSE PLAINTIFF’S EMPLOYER SUPERVISED AND CONTROLLED THE MEANS AND MANNER OF WORK (FIRST DEPT).
THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO UNIDENTIFIED AND UNPRODUCED RECORDS AND THEREFORE LACKED ANY PROBATIVE VALUE (FIRST DEPT).
THERE WAS NO EVIDENCE MOTHER WAS SERVED WITH THE ORDER OF PROTECTION PROHIBITING THE FATHER’S CONTACT WITH HER AND THE CHILDREN; THE PROOF IN THIS CHILD NEGLECT PROCEEDING AGAINST MOTHER DID NOT MATCH THE ALLEGATIONS IN THE PETITION; THE JUDGE EFFECTIVELY AMENDED THE PETITION BY IMPROPERLY CONFORMING THE PETITION TO SERIOUSLY CONFLICTING AND CONTRADICTORY PROOF; MOTHER WAS NEVER GIVEN THE OPPORTUNITY ADDRESS THE “AMENDED” PETITION; NEGLECT FINDING VACATED (FIRST DEPT).
DISPUTES ABOUT ENCROACHMENTS ON EASEMENTS RESOLVED; UNCLEAN HANDS AND LACHES DEFENSES REINSTATED (FIRST DEPT).
Impeachment of Defendant With a Statement Made by Defendant’s Attorney Deemed Proper
THE LANDLORD’S SUMMARY PROCEEDING WAS PROPERLY BROUGHT IN SUPREME COURT BECAUSE COVID EXECUTIVE ORDERS PROHIBITED BRINGING THE ACTION IN CIVIL COURT; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT).

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

MOTION TO SUBSTITUTE THE ADMINISTRATRIX OF PLAINTIFF’S ESTATE FOR THE... ONCE THE CITY TAX LIENS HAD BEEN ASSIGNED PAYMENT TO THE CITY, INSTEAD OF THE...