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Not Enough Evidence Before Family Court to Make Custody Determination

In remitting the matter to Family Court for a hearing in a custody proceeding with controverted allegations, the Second Department noted that, although a hearing is not always required, there was not enough evidence before the court for an informed determination in this case:

” [A]s a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing'”…. ” Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed'”…. However, ” it is not necessary to conduct such a hearing where the court already possesses sufficient relevant information to render an informed determination in the child’s best interest'” … .Under the circumstances of this case, the Family Court lacked sufficient information to render an informed determination as to the best interests of the subject children … . Matter of Labella v Murray, 2013 NY Slip Op 05076, 2nd Dept 7-3-13

 

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Permanent Neglect Established—Mental Illness

In affirming Family Court’s finding that mother had permanently neglected her child and, because of her mental illness, would not be able to adequately care for the child in the future, the Second Department wrote:

…[T]he petitioner established by clear and convincing evidence that it made diligent efforts to encourage and strengthen the parental relationship by, among other things, developing a service plan, facilitating regular visitation with the child, and making referrals for mental health evaluations and counseling …. Additionally, the petitioner established that, despite these efforts, the mother failed to plan for the children’s future…. The mother failed to complete a mental health program, and her continued lack of insight into the reasons why the child was removed from her care prevented her from correcting such problems and reflected her failure to plan for the child’s future. Accordingly, the Family Court properly determined that the mother permanently neglected the child.  Further, the Family Court properly found that there was clear and convincing evidence that the mother is presently and for the foreseeable future unable, by reason of mental illness, to provide proper and adequate care for the child (see Social Services Law § 384-b[4][c]).  Matter of Kira J, 2013 NY Slip Op 05070, 2nd Dept 7-3-13

 

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Revocation of Suspended Judgment Proper

The Second Department determined Family Court had properly revoked father’s suspended judgment for failure to comply with its terms and conditions:

The Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence, that the parent failed to comply with one or more of its conditions…. “When determining compliance with a suspended judgment, it is the parent’s obligation to demonstrate that progress has been made to overcome the specific problems which led to the removal of the child[ren] . . . [A] parent’s attempt to comply with the literal provisions of the suspended judgment is not enough” … . Matter of Kimble G II, 2013 NY Slip Op 05066, 2nd Dept 7-3-13

 

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Prima Facie Case of Family Offenses Not Established (Forcible Touching and Sexual Abuse)

The Second Department found that Family Court properly determined mother failed to establish a prima facie case of the family offense of forcible touching and sexual abuse and properly ruled hearsay inadmissible:

The mother presented no direct evidence that the father touched the child “for the purpose of degrading or abusing” the child or “gratifying [his] sexual desire” (Penal Law § 130.52; see Penal Law §§ 130.00[3]; 130.55;…. Furthermore, although, in some instances, the element of intent may be inferred from the nature of the acts committed and the circumstances in which they occurred…, an intent to gratify sexual desire on the part of the father cannot be inferred from the totality of the circumstances here…. * * *

Contrary to the mother’s contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a “hearing under . . . article [10] and article ten-A” of the Family Court Act (Family Ct Act § 1046[a]), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”…, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case…. Matter of Khan-Soleil v Rashad, 2014 NY Slip Op 05074, 2nd Dept 7-3-13

 

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Criteria for Modification of Existing Visitation Arrangement

The Second Department explained the principles relevant to a modification of an existing visitation arrangement as follows:

An existing visitation arrangement may be modified “upon [a] showing . . . that there has been a subsequent change of circumstances and modification is required” (Family Ct Act § 652 [a];…). “Extraordinary circumstances are not a prerequisite to obtaining a modification; rather, the standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered'”… .. “The best interests of the child generally lie in being nurtured and guided by both parents”…. “In order for the noncustodial parent to develop a meaningful, nurturing relationship with her [or his] child, visitation must be frequent and regular. Absent extraordinary circumstances, where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges”….  Matter of Grunwald v Grunwald, 2013 NY Slip Op 05069, 2nd Dept 7-3-13

 

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Mother Should Not Have Been Required to Contribute to Children’s Educational Expenses

In determining Family Court abused its discretion in ordering mother to contribute to the children’s educational expenses (where father affirmatively stated he was not seeking the contribution), the Second Department explained:

“Unlike the obligation to provide support for a child’s basic needs, support for a child’s college education is not mandatory'”…. “Pursuant to Domestic Relations Law § 240(11-b)(c)(7), the court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court’s discretion is not improvidently exercised in that regard”…. Here, however, the Family Court improvidently exercised its discretion in directing the mother to pay 29% of the subject children’s educational expenses, since the father affirmatively stated that he was not seeking such contribution from the mother. Matter of Grubler v Grubler, 2013 NT Slip Op 05068, 2nd Dept 7-3-13

 

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Criteria for Permanent Neglect Explained

The Second Department determined Family Court properly found father had permanently neglected the child and explained the criteria as follows:

“To establish permanent neglect, there must be clear and convincing proof that, for a period of one year following the child’s placement with an authorized agency, the parent failed to substantially and continuously maintain contact with the child or, alternatively, failed to plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship”…. According to the statute, planning for the future of the child means taking such steps as may be reasonably necessary to provide an adequate, stable home and parental care for the child within a period of time that is reasonable under the financial circumstances available to the parent (see Social Services Law § 384-b[7][c]). The plan must be realistic and feasible, and good-faith effort shall not, of itself, be determinative …. At a minimum, planning for the future of the child requires the parent to take steps to correct the conditions that led to the child’s removal from the home… .  Matter of Egypt AAG, 2013 NY Slip Op 05065, 2nd Dept 7-3-13

 

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Nonparent Must Show Extraordinary Circumstances in Face of Custody Petition Even If Nonparent Has Custody Pursuant to Prior Consent Order

In upholding Family Court’s denial of mother’s petition for sole custody, the Second Department determined the paternal grandparents, who were sharing custody under a consent order, met their “extraordinary circumstances” burden.  The Second Department noted that even where there is a prior order granting custody to a nonparent, the nonparent still has the burden of demonstrating “extraordinary circumstances” to continue the arrangement in the face of a petition for custody:

In a custody proceeding between a parent and a nonparent, ” the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances'”…. The nonparent has the burden of establishing extraordinary circumstances even where, as here, there is a prior order awarding physical custody of a child to the nonparent that had been issued on the consent of the parties…. Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody….   Matter of DiBenedetto v DiBenedetto, 2013 NY Slip Op 05064, 2nd Dept 7-3-12

 

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Father Estopped from Denying Paternity—Best Interests of Child Prevail

In upholding Family Court’s determination the father was estopped from denying paternity, in spite of his executing the acknowledgment based upon a mistake of fact, the Second Department explained the relevant legal principles:

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity…. If the court concludes that estoppel is not warranted, the court is required to order genetic marker tests or DNA tests for the determination of paternity, and to vacate the acknowledgment of paternity in the event that the individual who executed the document is not the child’s father (see Family Ct Act § 516-a[b][ii];…). * * *

The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” …. Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity,” in light of the child’s justifiable reliance upon such representations, and the resulting harm that his denial of paternity would engender…. “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” …. In all cases, “the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the child” … . Matter of Angelo AR v Tenisha NW, 2013 NY Slip Op 05084, 2nd Dept 7-3-13

 

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Summary Judgment Premature—Disclosure Necessary

In finding Supreme Court should have treated defendant’s motion, which was made after issue was joined, as a motion for summary judgment (not a motion to dismiss), the Second Department determined the motion should not have been granted because facts essential to oppose the motion may exist but could not yet be stated:

An award of summary judgment would be premature at this stage of the case. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion “exist but cannot then be stated” (CPLR 3212[f];…). ” This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'”…. Here, the defendant’s motion to dismiss the complaint was made prior to the parties conducting depositions. Since the plaintiffs had no personal knowledge of the relevant facts, they should be afforded the opportunity to conduct discovery, including depositions of the defendant’s employees and other witnesses that were present during the incident complained of….  Wesolowski v St Francis Hosp, 2013 NY Slip Op 05061, 2nd Dept 7-3-13

 

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