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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.

 

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A MARRIAGE WITHOUT FIRST OBTAINING A MARRIAGE LICENSE WILL BE DEEMED VALID IN NEW YORK IF THE MARRIAGE IS “SOLEMNIZED;” HERE THE CEREMONY PERFORMED BY THE COPTIC ORTHODOX CHURCH WAS DEEMED A “FAMILY BLESSING,” NOT A “MARRIAGE,” BECAUSE THE “SOLEMNIZATION” REQUIREMENTS WERE NOT MET (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kern, determined the parties in this divorce proceeding had never been married:

In this action for divorce, we are asked to determine whether the parties are validly married under the New York Domestic Relations Law despite not obtaining a marriage license prior to their alleged wedding ceremony. Pursuant to Domestic Relations Law § 25, a marriage is not void for failure to obtain a marriage license if the marriage is solemnized. A marriage is solemnized under Domestic Relations Law § 12 when a couple solemnly declares in the presence of a clergyman, magistrate, or one-day marriage officiant and attending witness or witnesses that they take each other as spouses. Even when the parties do not make this solemn declaration that they take each other as spouses, a marriage will still be valid without a license pursuant to Domestic Relations Law § 12 when the marriage is solemnized in the manner used and practiced in the couple’s respective denomination. As we find that neither of these scenarios occurred, we hold that the parties are not validly married pursuant to the Domestic Relations Law.

On July 29, 2017, the parties took part in a baptism of their son at a Coptic Orthodox Church performed by Bishop Anba David of the Coptic Orthodox Diocese of New York and New England and attended by the church’s priest, Father Gregory Saroufeem. After the baptism was completed, plaintiff was asked if she wished to be baptized into the Coptic Orthodox Church. She assented, and after plaintiff underwent certain preparations, the Bishop performed the baptism.

After the second baptism, plaintiff contends that the Bishop asked if she and defendant wished to be married, she and defendant agreed, and the Bishop performed an impromptu wedding ceremony. Defendant contends that the ceremony was a family blessing and not a marriage. It is undisputed that the parties did not have a marriage license, did not exchange rings, made no vows during the ceremony and did not execute a certificate of marriage, among other traditional requirements of the Coptic Church. Funti v Andrews, 2026 NY Slip Op 00012, First Dept 1-6-25

Practice Point: A marriage entered into without first obtaining a marriage license is valid in New York if the marriage is “solemnized.” Consult this opinion for a description of the :solemnization” requirements (which were not met here).

 

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WHETHER FAMILY COURT HAD JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDED ON WHETHER THERE WAS AN “INTIMATE RELATIONSHIP” BETWEEN PETITIONER AND RESPONDENT; THE EXISTENCE OF AN “INTIMATE RELATIONSHIP” IS A FACT-INTENSIVE INQUIRY WHICH, WHEN IN DISPUTE, REQUIRES A HEARING; MATTER REMITTED FOR THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should have ordered a hearing to determine whether the respondent had an “intimate relationship” with the petitioner such that a family offense proceeding alleging identify theft could be brought by the petitioner against the respondent. Whether an “intimate relationship” exist is a fact-intensive inquiry and when it is in dispute a hearing should be held:

Family Court’s jurisdiction in family offense proceedings, as defined by Family Ct Act § 812 (1), extends to enumerated offenses occurring between members of the same family or household, including those “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . While the statute does not define “intimate relationship,” it expressly excludes casual acquaintances and ordinary social or business associations … . In determining whether an intimate relationship exists, courts consider, among other things, “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . Additionally, “the relationship should be direct [and] not one based upon a connection with a third party” … . Whether an intimate relationship exists is a fact-intensive inquiry to be resolved on a case-by-case basis … . When the existence of an intimate relationship is in dispute, or the record is insufficient to permit determination as a matter of law, Family Court should conduct a hearing before dismissing the petition for lack of jurisdiction … . Matter of McCarra v Chiaramonte, 2025 NY Slip Op 07352, Third Dept 12-31-25

Practice Point: Family Court has jurisdiction over family offense proceedings involving unrelated parties if there exists an “intimate relationship” between the parties. Determining whether there is an “intimate relationship” is a fact-intensive inquiry usually requires a hearing.

 

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IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The alleged frequency of the abuse raised a question of fact whether defendants should have known of the abuse (constructive notice):

“By assuming legal custody over [a] foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life” … . Therefore, “a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child’s placement with the municipality’s choice of foster [home]” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s [*2]intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . M.F. v Putnam County, 2025 NY Slip Op 07283, Second Dept 12-24-25

Practice Point: In Child Victims Act cases alleging sexual abuse by a teacher, courts are finding that allegations of frequent abuse raise a question of fact about whether defendants should have been aware of it.

 

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THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined grandmother had demonstrated “extraordinary circumstances” such that she had standing to seek custody:

… [T]he grandmother met her burden of demonstrating other extraordinary circumstances with respect to both the mother and the father. The Court of Appeals has explained that “[i]n the absence of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’, a parent may not be denied custody” … . Consistent with that principle of law, we have determined that “an extended disruption of custody as defined in [the statute] is merely ‘a specific example of extraordinary circumstances’ . . . and the statute was ‘not intended to overrule existing case law relating to third parties obtaining standing in custody cases’ ” … .

In determining whether extraordinary circumstances exist, “[n]o one factor should be viewed in isolation . . . , but rather the ‘analysis must consider the cumulative effect of all issues present in a given case . . . , including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role’ ” … .

Here, we conclude that there are ” ‘other like extraordinary circumstances’ ” that give the grandmother standing to seek custody of the child … . Extraordinary circumstances arise from the fact that the now-six-year-old child has resided exclusively with the grandmother since she was two years old, the mother was incapable of caring for the child due to mental illness, and the father has not been significantly involved in the child’s life since birth. The father has had limited and sporadic visitation with the child and has never had the child with him overnight. He has not attended school events or medical appointments. Nor has he paid child support to either the mother or the grandmother. Finally, the child is emotionally attached to the grandmother and her half-brother, who has also been raised by the grandmother … . Matter of Morris v Smith, 2025 NY Slip Op 07133, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the “extraordinary circumstances” which will afford a nonparent standing to seek custody. Here the fact that the child had resided with grandmother for four years was deemed such an “extraordinary circumstance.”

 

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ALTHOUGH THE 16-YEAR-OLD DEFENDANT IN THIS MURDER CASE WAS LIABLE AS AN ACCOMPLICE, ACCOMPLICE-LIABILITY STANDING ALONE DOES NOT PRECLUDE REMOVAL TO FAMILY COURT; A GUILTY PLEA DOES NOT FORFEIT AN APPELLATE CHALLENGE TO THE DENIAL OF REMOVAL; THE WAIVER OF APPEAL WAS INVALID BECAUSE IT PURPORTED TO FORECLOSE ALL APPELLATE CHALLENGES (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined (1) defendant’s waiver of appeal was invalid because it purported to foreclose all appellate challenges; and (2) the statutory procedure for removing the 16-year-old defendant’s prosecution to Family Court was violated. The fact that defendant was charged as an accomplice in this carjacking/murder case did not disqualify the defendant from the removal procedure. Once the removal procedure is started, the People have 30 days to demonstrate removal is not appropriate. The majority disagreed with the dissent’s argument that the “removal-to-Family-Court-issue” was forfeited by defendant’s guilty plea:

Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver, however, is “inaccurate and misleading insofar as it purports to impose ‘an absolute bar to the taking of a direct appeal’ and to deprive defendant of his ‘attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal’ ” … . * * *

Defendant contends that the court erred in concluding that the People established by a preponderance of the evidence that defendant “caused significant physical injury to a person other than a participant in the offense” (CPL 722.23 [2] [c] [i]) and that defendant was therefore disqualified from having the matter transferred to Family Court. Initially, we respectfully disagree with our dissenting colleagues that defendant’s contention is forfeited by his guilty plea. It is undisputed that a guilty plea does not “extinguish every claim on appeal” and that the issues that are not forfeited by the plea generally “relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process” … . * * *

The plain language of CPL 722.23 (2) (c) supports the conclusion that the Legislature did not intend for the circumstances disqualifying an adolescent offender from removal to Family Court to be coextensive with criminal liability, including principles of accessorial liability, for a statutorily designated violent crime. Indeed, such a result could have been achieved by disqualifying adolescent offenders based solely on the crime charged without reference to any further factors. People v Jacobs, 2025 NY Slip Op 07124, Fourth Dept 12-23-25

Practice Point: Here the 16-year-old defendant should not have been denied removal to Family Court solely based on accomplice liability for murder. The right to challenge the denial of removal was not forfeited by defendant’s guilty plea. The waiver of appeal was invalid because it purported to foreclose all appellate challenges.

 

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FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE ALL CREDIBILITY ISSUES IN HIS FAVOR WHEN CONSIDERING MOTHER’S MOTION TO DISMISS THE CUSTODY MODIFICATION PETITION AFTER FATHER’S TESTIMONY; ALTHOUGH FATHER DESCRIBED WHAT THE CHILDREN TOLD HIM, SUCH HEARSAY CAN BE ADMISSIBLE IN ABUSE AND NEGLECT PROCEEDINGS; IN ADDITION, THE LINCOLN HEARING, WHICH WAS CANCELLED BY THE JUDGE, COULD HAVE SERVED TO CORROBORATE FATHER’S TESTIMONY; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s motion to dismiss at the close of father’s testimony in this modification of custody proceeding should not have been granted. The judge granted the motion to dismiss because there was no corroboration of father’s testimony which described what the children told him. However the children’s hearsay is admissible when it concerns abuse or neglect.  After dismissing the petition, the court cancelled the scheduled Lincoln hearing  The cancellation compounded the judge’s error because the children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony:

The father testified that the children made numerous statements to him describing the mother’s physical discipline of them and detailing the mother’s excessive alcohol consumption. The father also stated that he had observed changes in the children’s behavior, pointing specifically to the older child exhibiting signs of excessive nervousness and both children’s reluctance to return to their mother’s home at the conclusion of his parenting time. “A child’s out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated” … , and “the hearing court is accorded considerable discretion in determining whether there is sufficient corroboration” … . Notably, “[a] relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements” … .

We find that Family Court improperly granted the mother’s motion to dismiss as it failed to provide the father with the benefit of every reasonable inference and resolve all credibility issues in his favor … . Of greater concern, given the court’s reason for granting the motion — lack of corroboration of the father’s accusations — it abused its discretion in canceling the Lincoln hearing as “information shared by [the children] during a Lincoln hearing may serve to corroborate other evidence adduced at a fact-finding hearing” … . At the time of the hearing, the children were nine and six years of age and the record is bereft of any indication that the children were unwilling or incapable of participating in the Lincoln hearing. Thus, we remit the matter to Family Court to conduct a Lincoln hearing and any appropriate hearing following same … . Matter of Kalam EE. v Amber EE., 2025 NY Slip Op 07050, Third Dept 12-18-25

Practice Point: Consult this decision for insight into how the evidence presented by the petitioner in a custody modification proceeding should be analyzed in the face of a motion to dismiss, including the admissibility of hearsay presented by the petitioner describing what the children told the petitioner.

Practice Point: Children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony. Here it was deemed reversible error for the judge to dismiss the petition after petitioner’s testimony on the ground there was no corroboration of the statements petitioner ascribed to the children while cancelling the Lincoln hearing which could have provided corroboration.

 

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THE MODIFICATION OF CUSTODY PETITION WAS SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, determined the maternal grandmother, who has custody of the children, sufficiently alleged a change of circumstances which may warrant an modification of custody such that the children could choose to spend time with the maternal grandfather and the maternal grandmother and grandmother could live together. The petition for modification was based upon the ages of the children (late teens to age of majority) and the grandfather’s extended period of sobriety. The petition was deemed sufficient to withstand a motion to dismiss:

“In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The grandmother sustained this threshold burden. Matter of Christine X. v James Y., 2025 NY Slip Op 07060, Third Dept 12-18-25

Practice Point: Consult this decision for the analytical criteria for assessing whether a petition for a modification of custody is sufficient to withstand a motion to dismiss.

 

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FAMILY COURT ERRONEOUSLY DIRECTED SERVICE UPON MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING “BY EMAIL” WHICH DOES NOT COMPLY WITH DOMESTIC RELATIONS LAW 75-G; ALLEGATIONS THAT MOTHER DESTROYED EVIDENCE OF SERVICE AND WAS AWARE OF THE PROCEEDINGS ARE IRRELEVANT; THE COURT NEVER ACQUIRED JURISDICTION OVER MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court never acquired jurisdiction over mother in this modification of custody proceeding. Father was directed to serve mother by email and by Initiating international service through the US Central Authority, a method not compliant with Domestic Relations Law 75-g:

That statute requires that notice be given by personal delivery or by any form of mail requesting a receipt and that the court may only direct an alternative form of service upon a finding that “service is impracticable” by personal delivery or by mail. However, the father’s motion papers contained no indication that personal service or service by any form of mail requesting a receipt was “impracticable” (Domestic Relations Law § 75-g[1][c]). Therefore, the Family Court erred in directing service by email and the court never acquired personal jurisdiction over the mother by the email service that was effectuated.

The father claims that the mother was personally served … . However, the record contains no affidavit of service on the mother. The father’s assertion in his brief that the mother destroyed evidence of service does not establish that lawful service was made, as it was his responsibility to prove that service was properly carried out in the first place … . Moreover, the fact that the mother became aware of the proceeding at some point … does not confer jurisdiction if there has not been compliance with the statutorily prescribed methods of service of process … . Matter of John F.B. v Maria U., 2025 NY Slip Op 06905, First Dept 12-11-25

Practice Point: Here father was directed by the court to serve mother by “email” which does not comply with Domestic Relations Law 75-g. The court never acquired jurisdiction over mother, despite her awareness of the proceedings.

 

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TAKING THE APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE FIRST DEPARTMENT DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DID NOT DEMONSTRATE THE APPPELLANT JUVENILE WAS PROPERLY TRANSFERRED FROM A NONSECURE TO A SECURE FACILITY; THE JUVENILE’S MISBEHAVIOR WAS NOT THAT SERIOUS; ACS DID NOT DEMONSTRATE IT HAD EXHAUSTED LESS SEVERE ALTERNATIVES (FIRST DEPT).

The First Department, reversing Family Court, considering an otherwise moot appeal because the issue recurs and juveniles are only placed for a limited amount of time, determined the Administration for Children’s Services (ACS) did not demonstrate the need to place the appellant (juvenile) in a secure facility:

Under Family Court Act § 355.1(2), Family Court can modify a dispositional order “upon a showing of a substantial change of circumstances” by the agency, to place a youth in a secure facility, if “the respondent has demonstrated by a pattern of behavior that he or she needs a more structured setting and the social services district has considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” … . Notably, behaviors meriting a modification include “disruptions in facility programs; continuously and maliciously destroying property; or, repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

Here, ACS alleged that two incidents where appellant went absent without consent (AWOC) over the course of two months constituted a “pattern of behavior” warranting his placement in a secure facility. The record reflects that, during the first AWOC incident …, appellant “darted out the front door and ran” from a non-secure facility. During the second incident …, appellant fled through a damaged door at a limited secure facility after other youths broke the door while trying to escape. While this behavior is problematic, it simply does not rise to the level of seriousness reflected in the examples provided in the statute, i.e. “continuously and maliciously destroying property” or “repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

ACS also failed to show that it first “considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” before seeking modification as it was required to do … . According to ACS policies, “[m]odifications must be considered as an option only when all efforts to avoid the modification have been exhausted.” … ACS did not present any affirmations or provide any witness testimony regarding the limited secure facility’s ability to address appellant’s behavior … . Matter of J.D., 2025 NY Slip Op 06807, First Dept 12-9-25

Practice Point: Consult this decision for insight into the level of a juvenile’s misbehavior which will justify placement in a secure facility, as well as the less severe alternatives which must be tried or demonstrated ineffective first.

 

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