In a full-fledged opinion by Justice Acosta, the First Department affirmed Supreme Court’s denial of defendant’s motion to dismiss a breach of contract complaint. Plaintiffs contended the floor share price in the “notwithstanding” clause of the contract was an error, and submitted a supporting email referring to a different price in opposition to the motion […]
The First Department determined Family Court properly found mother incapable of caring for her child by reason of mental illness and noted the court properly drew a negative inference from the mother’s failure to call her own treating physician to rebut the allegations in the petition and a suspended judgment is not available: The evidence, […]
The Third Department remitted the matter to Family Court for a Lincoln hearing to determine the preferences of the 12-year-old child with respect to custody: While the decision whether to conduct such a hearing lies within the court’s discretion …, it is often the preferable course … . In this case, the court originally indicated […]
In affirming Family Court’s finding that the parents had permanently neglected their daughter, the Third Department noted that father had not been denied due process based on his absence from some of the proceedings: We reject the father’s assertion that his due process rights were violated when Family Court proceeded with a portion of the […]
The Third Department affirmed Family Court’s neglect finding but determined the order prohibiting visitation unless recommended by a therapist improperly delegated the court’s authority to make determinations in the best interests of the child: …[W]e find merit to respondent’s argument that Family Court’s order prohibiting visitation except “as therapeutically recommended or attendance at therapy with […]
In affirming Family Court’s dismissal of mother’s petition for a modification of custody, the Third Department noted that Family Court properly assumed jurisdiction over a California custody order: Family Court properly assumed jurisdiction over this proceeding. As California no longer had exclusive continuing jurisdiction over this matter (see 28 USC § 1738A [d]), New York […]
The Third Department determined Family Court erred in determining the parents’ respective contributions to child support when it used the catchall factor (factor 10, FamCtAct 413 (1)(f)(10)) to deviate from the Child Support Standards Act (CSSA) formula because the father had custody of the older child all the time and the younger child every other […]
The Third Department determined there was not a sound basis for Family Court’s determination that shared custody was appropriate …[N]either party appears to have requested such relief, and the parties’ testimony at the fact-finding hearing was replete with mutual allegations of domestic violence and poor communication, as well as descriptions of vastly differing parenting styles. […]
In affirming the denial of custody to petitioner, the maternal grandmother, in favor of the child’s mother, the Third Department explained the relevant criteria: “‘[A] biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody […]
The Third Department used imputed income to determine mother’s ability to contribute to the children’s college education: In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek more lucrative employment that is consistent with his or her education, skills and experience … . […]
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