Family Law – New York Appellate Digest

THE RECORD SUPPORTED AN ORDER MAKING SPECIAL FINDINGS TO ALLOW A JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) TO AVOID DEPORTATION TO GUATEMALA (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined the petition for an order making special findings to allow a juvenile to petition for special immigrant juvenile status (SIJS) such that the child can remain in the US and avoid deportation to Guatemala:

The child simultaneously moved for the issuance of an order making special findings that, among other things, the child’s reunification with his parents is not viable due to parental neglect, abandonment, or abuse, and it would not be in his best interests to be returned to Guatemala, his previous country of nationality and last habitual residence. Although Surrogate’s Court granted the guardianship petition, following a subsequent hearing, the Surrogate issued the order on appeal denying the child’s motion for an order making the requisite declaration and special findings on the basis that the child presented “no credible testimony . . . of abuse, abandonment or neglect or that reunification with one or both of his parents is not viable.” * * *

… [T]he evidence established that the child is under the age of 21, unmarried, and a resident alien physically present in the United States and, inasmuch as the Surrogate appointed the child’s brother as his guardian, the child has been legally committed to or placed under the custody of an individual appointed by a juvenile court located in the United States within the meaning of 8 USC § 1101 (a) (27) (J) (i) … .

… [W]e conclude that reunification of the child with his parents is not viable due to parental neglect (see generally Family Ct Act § 1012 [f] [i]). The record demonstrates that the child’s parents did not provide the child with medical care, even after he sustained a serious injury … , encouraged the child to drop out of school and work on the family farm at the age of 15 … , failed to protect the child from gang violence in Guatemala … . … [I]t would not be in the best interests of the child to return to Guatemala, his previous country of nationality and country of last habitual residence … . Matter of Juarez, 2026 NY Slip Op 01686, Fourth Dept 3-20-26

March 20, 2026

Evidence, Family Law

MOTHER’S MENTAL ILLNESS AND HER REQUEST FOR RESPITE CARE BECAUSE SHE WAS OVERWHELMED DID NOT SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE OF AN IMMINENT RISK TO THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence of mother’s mental illness did not support the finding that she neglected the children:

The court’s determination that the mother neglected the subject children was not supported by a preponderance of the evidence … . Neglect occurs when a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as the result of the parent’s failure to “exercise a minimum degree of care” (Family Ct Act § 1012 [f][i]). “While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of neglect, unless it is shown that the parent’s condition resulted in imminent danger to the child” … .

Although the mother testified that she was diagnosed with anxiety and depression, the record does not support a finding of “a link or causal connection” between the mother’s diagnoses and any impairment or imminent danger of impairment to the children … . The sole evidence of actual impairment was a burn on one of the children, and the uncontroverted testimonial and documentary evidence establish that the injury was accidental and that the mother provided care … .

Further, petitioner failed to establish how the mother’s mental health diagnoses caused the children to be in imminent danger of being impaired. The mother openly acknowledged her mental health diagnoses and treatment … . The record demonstrates that the mother was at all relevant times under the care of a psychiatrist and was compliant with the psychiatrist’s prescribed medications. ….

The mother’s request for respite care was also not a proper basis for finding imminent risk. … [S]he was feeling overwhelmed with caring for her three children and was unwilling or unable to care for and supervise them any longer. The miscellaneous information section states that the mother said she did not want her children any longer and wanted ACS to take them … because she was feeling overwhelmed. … The mother explicitly testified that she was not afraid she would “do something” to hurt her children or herself. Matter of Ja.W., 2026 NY Slip Op 01623, First Dept 3-19-26

Practice Point: Here there no evidence that mother presented an imminent risk of impairment to her children. Mother’s acknowledged mental illness, for which she was receiving treatment, and her request for respite care because she was feeling overwhelmed did not amount to neglect.

March 19, 2026

Appeals, Criminal Law, Evidence, Family Law

ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT, THE EVIDENCE OF THE INTENT TO COMMIT ASSAULT SECOND, WHICH INVOLVED INJURY TO POLICE OFFICERS, DID NOT SURVIVE A WEIGHT-OF-THE-EVIDENCE ANALYSIS; THE TWO JUVENILES WERE FIXATED SOLEY UPON FIGHTING EACH OTHER THROUGHOUT THE BRIEF INCIDENT (FIRST DEPT).

The First Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, in a full-fledged opinion by Justice Rodriguez, determined the assault second adjudications were not supported by the weight of the evidence. Two juveniles were fighting each other and police officers were injured trying to break-up the fight. The First Department found that, because the juveniles were fixated only on fighting each other throughout the incident there was insufficient evidence of an intent to interfere with the officers’ performance of their duty:

… Penal Law § 120.05 (3) provides: “A person is guilty of assault in the second degree when: . . . 3. With intent to prevent [an] officer . . . from performing a lawful duty, . . . he or she causes physical injury to such [] officer.” Accordingly, a person is guilty of the offense when their conscious objective or purpose is to prevent an officer from performing their lawful duty, the person acts in a manner consistent with that intent, and the officer is injured … . * * *

The record … lacks any indication that appellant directed his actions at the officers, whether by turning around, throwing an elbow backward, or in some other way … . …

Similarly, the evidence at the hearing did not show beyond a reasonable doubt that appellant had even a chance to recognize and consciously disregard the officers’ directives. Matter of Cynque T., 2026 NY Slip Op 01147, First Dept 2-26-26

Practice Point: Consult this decision for insight into the factors considered under a weight-of-the-evidence analysis of criminal intent.

February 26, 2026

Civil Procedure, Family Law, Judges

THE JUDGE FAILED TO COMMUNICATE WITH THE OHIO COURT AFTER LEARNING OF ANOTHER CUSTODY-RELATED PROCEEDING THERE AND FAILED TO CONSIDER WHETHER IT SHOULD EXERCISE TEMPORARY EMERGENCY JURISDICTION BASED ON ALLEGATIONS OF DOMESTIC VIOLENCE IN MOTHER’S PETITION (FIRST DEPT).

The First Department, reversing Family Court, determined the judge committed reversible error by failing to communicate with the Ohio court after learning of another custody-related proceeding there. In addition, the judge failed to consider whether to exercise temporary emergency jurisdiction to protect mother and child. Mother’s custody petition alleged serious domestic violence:

Family Court failed to satisfy the procedural mechanism required by the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law, art 5-A) when a custody-related proceeding is pending in another state. Specifically, after the court became aware of the Ohio proceeding, the record does not reflect that the court attempted to communicate with the Ohio court, which is a reversable error … . * * *

… Family Court failed to comply with the statutory requirement to consider, under the circumstances presented and in light of the serious allegations of domestic violence in the mother’s petition, whether it was necessary to exercise temporary emergency jurisdiction to protect the mother and the child … . Matter of Shelby C.V. v Joshua W.K, 2026 NY Slip Op 01002, First Dept 2-17-26

Practice Point: It is reversible error for a judge to fail to communicate with a court in another jurisdiction after learning of another custody-related proceeding there.

Practice Point: Allegations of domestic violence may trigger the statutory requirement that a judge consider exercising temporary emergency jurisdiction to protect family members.

February 19, 2026

Family Law, Judges

FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS BY CONDITIONING ACCESS ON THE CONSENT OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the court should not have delegated its authority to determine parental access by conditional parental access on the consent of the children:

… “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the Family Court improperly delegated its authority to determine the father’s and the mother’s parental access with Destinee A. and Kaylee A. to those children. … [W]e remit the matter to the Family Court … for a new determination as to the father’s and the mother’s parental access with Destinee A. and Kaylee A. in accordance with the best interests of those children … . Matter of Destinee A. (Jacquelyn M.), 2026 NY Slip Op 00890, Second Dept 2-18-26

Practice Point: A Family Court judge cannot delegate his/her/their authority to determine parental access to the parties or the children.

February 18, 2026

Criminal Law, Evidence, Family Law, Judges

THE YOUTH PART OF COUNTY COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT “EXTRAORDINARY CIRCUMSTANCES” WARRANTED GRANTING THE PEOPLE’S MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S PROSECUTION TO FAMILY COURT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge dissenting opinion, determined the youth part of County Court did not abuse its discretion in granting the People’s motion to prevent removal of the 17-year-old defendant’s prosecution to Family Court. Under the State’s Raise the Age legislation, the People’s motion to prevent removal to Family Court can be granted in “extraordinary circumstances:”

Although [county court] found that defendant and his accomplices entered the victim’s home with the intent to commit a robbery and, during the course of the robbery, struck the victim several times in the face with a shotgun, the court noted further that the violent nature of the alleged crimes was not by itself a basis for preventing removal on the ground of extraordinary circumstances. Rather, the court opined that it was also required to consider whether defendant was amenable to Family Court services. In that regard, the court found that defendant had several mental health diagnoses but, at the same time, had been receiving services for five years. Based on those considerations, the court concluded that the People had demonstrated extraordinary circumstances sufficient for the case to remain in the youth part.

The Appellate Division affirmed on the basis that defendant participated in a violent home invasion involving weapons and injuries to the victim, and that, despite the Family Court services provided to him over the five years of his involvement with the criminal justice system, he “made no appreciable positive response and continues to engage in escalating criminal behavior” … . Thus, the Appellate Division concluded that, “under the totality of the circumstances, and taking into account the mitigating factors and the substantial aggravating factors, the court did not abuse its discretion in determining that extraordinary circumstances exist warranting that this case remain in the youth part” … . People v Guerrero, 2026 NY Slip Op 00826, CtApp 2-17-26

Practice Point: Consult this opinion for insight into when “extraordinary circumstances” will justify granting the People’s motion to prevent removal of a 17-year-old’s prosecution from the youth part of County Court to Family Court.

February 17, 2026

Evidence, Family Law

THE FINDING THAT MOTHER HAD ABUSED THE CHILDREN WAS BASED ON VIDEO EVIDENCE PURPORTING TO SHOW MOTHER’S EX-BOYFRIEND ABUSING ONE OF THE CHILDREN; THE COURT OF APPEALS REVERSED, FINDING THAT THE VIDEO EVIDENCE WAS NOT AUTHENTICATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the finding that mother had abused her daughter and son based entirely on videos purportedly showing mother’s former boyfriend abusing one of the children required reversal because the foundation evidence offered for the videos was insufficient: There was a three-judge dissenting opinion, and a separate two-judge dissenting opinion: The majority opinion is too detailed to fairly summarize here. The majority concluded the videos, which were procured by an FBI agent from a suspected child pornographer who had, in turn, procured the videos from a hacked security camera, were not authenticated:

The videos were not discovered in the family home or on any camera or computer belonging to D.K. [the ex-boyfriend] or M.H [mother]. Instead, in the course of an FBI investigation into persons suspected of trading child pornography, the agents executed a search warrant on B.W., who lived in Syracuse. In the course of questioning by FBI Agent Martin Baranski, B.W., though not under oath or in any sworn statement, said (according to Agent Baranski’s recollection) that he had been “hack[ing] into security web cameras for the past few years.” B.W. further stated that in 2019 he had “hacked into a security camera” which showed what he thought was an adult male sexually abusing the man’s 15-year-old stepdaughter. B.W. claimed that he “watched a lot of the security camera footage of this house” and saw “a lot” of interactions between the individuals depicted in the videos. He told Agent Baranski he had saved some videos from that camera in a particular location on his computer, along with a screenshot that contained details about the security camera login information, including a possible name, email and IP address.

Searching a digital copy of B.W.’s computer, Agent Baranski found three videos that appeared to show an adult male sexually abusing a young girl; the videos contained timestamps indicating they were recorded around the summer of 2019. Based on information from the screenshot on the suspect’s computer and other investigative work, Agent Baranski was able to identify D.K.’s name and workplace; he then relayed that information to New York law enforcement. * * *

The rules of evidence apply in Family Court just as much as they apply in any other court. The proponent of evidence bears the burden of demonstrating its authenticity … . … The failure to authenticate evidence sufficiently does not mean the evidence was false, but only that it was not properly authenticated according to the rules of evidence. … We do not mean to suggest that the videos here could not have been authenticated, or that child victims must testify, or that B.W., Agent Baranski, or some other person could not have offered adequate authentication testimony. But the evidence of authentication proffered here was legally insufficient. What that means for the next case is that in Family Court, as in all our courts, evidence must be properly authenticated. Matter of M.S. (M.H.), 2026 NY Slip Op 00825, CtApp 2-17-26

Practice Point: The rules of evidence apply equally in Family Court. Here the finding that mother abused the children was based entirely on video evidence. Because the video evidence was not authenticated, the abuse finding was reversed.

February 17, 2026

Criminal Law, Evidence, Family Law, Judges

SORA RISK-LEVEL POINTS SHOULD NOT HAVE BEEN ASSESSED BASED UPON A JUVENILE DELINQUENCY ADJUDICATION; THE EVIDENCE DID NOT SUPPORT AN AUTOMATIC OVERRIDE FOR AN “ABNORMALITY THAT DECREASES THE ABILITY TO CONTROL IMPULSIVE SEXUAL BEHAVIOR” (FOURTH DEPT).

The Fourth Department, reducing defendant’s risk level assessment from three to two determined (1) the court should not have based a 10-point assessment on a juvenile delinquency adjudication and (2) the evidence did not demonstrate defendant suffered from an abnormality that decreased his ability to control impulsive sexual behavior:

Defendant was assessed 10 points under risk factor 8 for his age at the time of his first sex crime based on a juvenile delinquency adjudication when he was 15 years old, and the court rejected defendant’s challenge to the assessment of points under that risk factor. We have repeatedly held, however, that a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination … . * * *

Defendant also contends that the court erred when it,… adjudicated him a level three risk through application of an automatic override based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … . We agree. It is well settled that “[t]he People bear the burden of proving the applicability of a particular override by clear and convincing evidence” … . … While the record supports the conclusion that defendant suffered from mental illness and that he exhibited impulsive behavior, there was no clinical assessment in the record establishing that his mental illness decreased his ability to control his behavior. Of note, neither the People nor the Board of Examiners of Sex Offenders requested that the court apply the automatic override here and, further, defendant never had the opportunity to oppose use of the override before the court decided to apply it. People v Singleton, 2026 NY Slip Op 00756, Fourth Dept 2-11-26

Practice Point: A court cannot assess SORA risk-level points based on a juvenile delinquency adjudication.

Practice Point: Consult this decision for insight into the evidence required to apply an automatic override in a SORA risk-assessment proceeding based on “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” … .

February 11, 2026

Evidence, Family Law, Judges

GRANDMOTHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” SUCH THAT SHE HAD STANDING TO SEEK CUSTODY OF THE CHILDREN (FOURTH DEPT.).

The Fourth Department, reversing Family Court and remitting the matter, determined that grandmother had demonstrated “extraordinary circumstances” and she therefore had standing to bring a custody petition:

The evidence here established that, in 2018, the father was arrested and incarcerated until 2022. During that time, the children resided with the mother in the grandmother’s home until October 2021, when the grandmother moved out. The father never saw the children while he was incarcerated, rarely spoke with them, and never sent them cards, letters, or gifts. When the father was released from incarceration, the mother asked him to take custody of the children, which he did starting in July or August 2022; the grandmother visited with the children on the weekends. The mother died less than a year later, and the children lived with the grandmother during the summer of 2023. In September 2023, the parties filed petitions seeking custody of the children, and the court granted the grandmother temporary custody of the children, with the father having visitation. From that time until the conclusion of the hearing in July 2024, the father did not visit with the children and rarely communicated with them.

We conclude that the cumulative effect of the father’s extended incarceration, his failure to maintain contact with the children during that time, the children’s resulting bond with the grandmother, and the father’s failure to maintain contact with the children during the pendency of the hearing, is sufficient to establish extraordinary circumstances … . Matter of Craig v Thomas, 2026 NY Slip Op 00751, Fourth Dept 2-11-26

Practice Point: Consult this decision for insight into the nature of “extraordinary circumstances” which will confer standing upon a grandparent to seek custody of the grandchildren.

February 11, 2026

Attorneys, Contempt, Family Law, Judges, Social Services Law

ADMINISTRATION FOR CHILDREN’S SERVICES PROPERLY HELD IN CIVIL CONTEMPT FOR FAILING TO COMPLY WITH AN ORDER TO PLACE THE CHILD IN TRADITIONAL FOSTER CARE (SECOND DEPT).

The Second Department, modifying Family Court, determined the petitioner (Administration for Children’s Services) was properly held in civil contempt upon the motion of the attorney for the child for failure to comply with the court order to place the child in a traditional foster home. However, the Second Department deemed the imposition of a fine of $250 per day inappropriate:

“‘A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court'” … . Upon a finding of civil contempt, “‘Judiciary Law § 773 . . . provides for two types of awards: one where actual damage has resulted from the contemptuous act in which case an award sufficient to indemnify the aggrieved party is imposed, and one where the complainant’s rights have been prejudiced but an actual loss or injury is incapable of being established'” … . “In the second situation, the fine is limited to $250, plus the complainant’s costs and expenses” … . By contrast, “where there is actual loss or injury the statute does not provide for a general $250 fine, single or multiple. It calls instead for an assessment that will indemnify aggrieved parties” … .

Here, the Family Court correctly determined that the child had suffered actual injury as a result of the contemptuous act. * * *

* * * [T]he court should have imposed a “reasonably certain compensatory fine” that is “properly related to the scope of the injury” … .

… “‘Accordingly, ‘[a]ny penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both'” … . Under these circumstances, where the Family Court specifically invoked the petitioner’s “inconsisten[cy] and carelessness,” the fine of $250 per day of noncompliance appears to represent an improper attempt to punish the contemnor rather than compensate the injured party … . Matter of Emily M. (Joyce G.), 2026 NY Slip Op 00377, Second Dept 1-28-26

Practice Point: Here the Administration for Children’s Services, upon the motion of the attorney for the child, was held in civil contempt for failing to comply with an order to place the child in traditional foster care.

January 28, 2026