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THE PEOPLE’S AFFIRMATION IN SUPPORT OF THEIR MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S CASE TO FAMILY COURT WAS NOT BASED ON THE PROSECUTOR’S PERSONAL KNOWLEDGE AND FAILED TO ALLEGE DEFENDANT’S SPECIFIC CONDUCT; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People’s motion to prevent removal of the 17-year-old defendant’s case to Family Court should have been denied:

The court was … required to order removal of the action to Family Court unless the People successfully moved to prevent removal by establishing “that extraordinary circumstances exist that should prevent the transfer” … . Such a motion must “contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing” … . Whether extraordinary circumstances exist to preclude removal to Family Court is a discretionary determination to be made by a court after consideration of “the totality of the facts and circumstances” … . A court exercising that discretion, however, should give consideration to the legislative intent that retention should be the exception and not the rule, i.e., that only “extremely rare and exceptional cases” involving “highly unusual and heinous facts” and “strong proof that the young person is not amenable [to] or would not benefit in any way from the heightened services in the family court” should be precluded from removal … .

Here, the People’s supporting affirmation relied heavily on the nature of the charges against defendant. … [E]ach count on which defendant was indicted also named 17 codefendants with no factual allegations that would permit parsing out defendant’s specific conduct in, for example, possessing either a controlled substance or a weapon. Although defendant was also alleged to have committed conspiracy in the second degree, he was not alleged to have committed any overt act in furtherance of that conspiracy. The prosecutor also failed to state that the few factual allegations that were included in the People’s supporting affirmation were based on the prosecutor’s “personal knowledge” …  and that conclusion is not a reasonable inference from the affirmation as a whole … . Instead, there is no indication from what specific sources any information was obtained, no supporting documentation was included with the motion, and no request for a hearing was made … . Although the People also argued that defendant’s previous arrests on similar charges weighed against removal, we note that “reoffense in and of itself” is not “extraordinary” (id. at 666 [internal quotation marks omitted]). The mere fact of a prior charge or charges does not provide evidence of defendant’s actual prior conduct, i.e., the specific “illegal or immoral acts,” if any, that might have led to those charges … , or whether defendant’s conduct constituted “escalating criminal behavior” … . The People’s motion therefore failed to contain sufficient “allegations of sworn fact based upon personal knowledge of [an] affiant” … on which the court could have relied in considering defendant’s actual role in the charged offenses in relation to his numerous codefendants, many of whom were adults … . People v Quashawn C., 2026 NY Slip Op 05892, Fourth Dept 10-9-26

Practice Point: Consult this decision for a detailed discussion of what a prosecutor must demonstrate to prevent removal of a 17-year-old defendant’s case to Family Court.

 

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THE ASSETS TRANSFERRED TO IRREVOCABLE TRUSTS FOR THIRD PARTY BENEFICIARIES ARE NOT SUBJECT TO EQUITABLE DISTRIBUTION, TRIAL COURT REVERSED OVER AN EXTENSIVE DISSENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this divorce proceeding, over a comprehensive dissent, determined the assets transferred to irrevocable trusts were not subject to equitable distribution:

While a trial court has broad discretion in fashioning an equitable distribution award, that discretion is not unlimited. Courts must respect the parties’ economic decisions made during the marriage, and may not disregard the legal character of property based solely on equitable concerns. As the Court of Appeals has emphasized, courts should not second-guess how parties chose to structure and allocate their assets during the marriage (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420-421 [2009]). Consistent with this principle, assets transferred to valid, irrevocable trusts for third-party beneficiaries are not subject to equitable distribution absent evidence that the trust is a sham or that a spouse retains revocation power or a beneficial interest … . C.S. v R.H., 2026 NY Slip Op 05849, First Dept 10-8-26

Practice Point: Assets transferred to Irrevocable trusts for third-party beneficiaries are not subject to equitable distribution.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED HER AUTHORITY TO DETERMINE PARENTAL ACCESS TO ONE OF THE CHILDREN IN THIS ABUSE/NEGLECT PROCEEDING (SECOND DEPT).

The Second Department, reversing (modifying) Family Court in this abuse and neglect proceeding, held Family Court should not have delegated its authority to determine father’s parental access to one of the children:

… Family Court … found that the father sexually abused and neglected Alexander and derivatively abused and neglected Maximillian, and conditioned the father’s parental access with Alexander and Maximillian upon the consent of Alexander. * * *

… [A] court may not delegate its authority to determine parental access to either a parent or a child … . … [W]e remit the matter … for a new determination as to the father’s parental access with Alexander and Maximillian in accordance with the best interests of those children … . Matter of Alexander M.R. (Manuel D. J. R.), 2026 NY Slip Op 05790, Second Dept 10-7-26

Practice Point: A judge cannot delegate the authority to determine parental access.​

 

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IT WAS NOT CLEAR WHICH EMBRYOS, CREATED BY IN VITRO FERTILIZATION DURING THE PARTIES’ MARRIAGE, WERE ENCOMPASSED BY THE PARTIES’ STIPULATION THAT PLAINTIFF SHOULD HAVE EXCLUSIVE POSSESSION AND CONTROL OF THEM; THEREFORE, PLANTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED; THERE WAS A COMPREHENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s grant of summary judgment to plantiiff, over an extensive and comprehensive dissent, determined there were questions of about which frozen embryos were the subject of a stipulation in which the parties agreed plaintiff should have exclusive possession and control of the embryos created by in vitro fertilization (IVF). The parties were married at the time of the in vitro fertilization and subsequently divorced:

Here, the parties’ failure to establish from which IVF cycle the disputed embryos derived and to submit an agreement that provides for the cryopreservation and disposition of the embryos formed in the November 2021 IVF cycle precludes the award of judgment as a matter of law. Significantly, while the parties have relied upon the March 2023 agreement in fashioning their arguments, they did not stipulate that the March 2023 agreement controlled the dispute. Further, by its terms, the March 2023 agreement did not pertain to previously cryopreserved embryos, and the parties have stipulated that the embryos in dispute were formed in 2021. Thus, the evidence submitted on the defendant’s motion and the plaintiff’s cross-motion established that the March 2023 agreement did not control the disposition of the embryos in dispute. “On this record, we must decline the parties’ invitation to award judgment as a matter of law” … .Millender-Rubin v Rubin, 2026 NY Slip Op 05780, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the issues raised in a divorce proceeding by embryos created by in vitro fertilization during the marriage.

 

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MOTHER WAS ENTITLED TO VACATION OF THE NEGLECT FINDING, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court in this neglect proceeding, determined mother was entitled to modification of the order of fact-finding and disposition granting a suspended judgment and vacating the finding of neglect. The neglect finding stemmed from mother’s failure to take medication to treat her mental illness:

Family Court Act § 1061 provides that for good cause shown, a court may set aside, modify, or vacate any order issued in the course of a child protective proceeding … . As with an initial order, the modified order must reflect a resolution consistent with the best interests of the child after consideration of all relevant facts and circumstances, and must be supported by a sound and substantial basis in the record … . “Courts have identified four factors to consider when determining whether to vacate a finding of neglect: ‘(1) respondent’s prior child protective history; (2) the seriousness of the offense; (3) respondent’s remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court-ordered services and treatment'” … .

Here, the mother had no prior child protective history; the record demonstrates the mother’s compliance with services, medication, and therapy; and the mother’s therapist reported that the mother “shows good insight about the need for treatment.” Further, a suspended judgment leading to vacatur of the neglect finding was in the child’s best interests because the mother would have access to employment opportunities in childcare … . Matter of Naila P. (Althea P.), 2026 NY Slip Op 05540, Second Dept 9-30-26

Practice Point: Here mother’s neglect finding was vacated based upon her compliance with mental health services, medication and therapy. The neglect finding stemmed from her failure to take medication to treat her mental illness.

 

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THE PARTIES IN THIS FAMILY OFFENSE PROCEEDING HAD NO DIRECT RELATIONSHIP, DEPRIVING FAMILY COURT OF JURISDICTION; THERE MUST BE AN “INTIMATE RELATIONSHIP” BETWEEN THE PARTIES TO CONFER JURISDICTION (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the petitioner and the appellant (the mother of petitioner’s boyfriend) have no direct relationship. Therefore Family Court did not have jurisdiction over the family offense proceeding (which requires an “intimate relationship”):

Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . “[M]embers of the same family or household” include, among others, “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” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include “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” … .

Here, the parties have no direct relationship and are connected only through a third party, who is the petitioner’s former boyfriend and the appellant’s son … . Additionally, the parties never resided together and their contact with one another was minimal and related only to a few visits between the appellant and the petitioner’s daughter … . Matter of Monahan v Zindman, 2026 NY Slip Op 05538, Second Dept 9-30-26

Practice Point: Here the parties in this family offense proceeding, petitioner and petitioner’s boyfriend’s mother, had no direct relationship. To confer jurisdiction to Family Court in a family offense matter, the parties must have an “intimate relationship.”

 

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ALTHOUGH SUPREME COURT DID NOT ABUSE ITS DISCRETION WHEN IT GRANTED THE PEOPLE’S MOTION TO PREVENT THE TRANSFER OF THE ADOLESCENT OFFENDER’S CASE TO FAMILY COURT, MITIGATING FACTS AND THE LEGISLATIVE PURPOSE UNDERLYING THE “RAISE THE AGE” LEGISLATION WARRANTED INVOCATION OF THE COURT’S “INTEREST OF JUSTICE” JURISDICTION AND DENIAL OF THE PEOPLE’S MOTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Chan, reversing Supreme Court, over a two-justice dissent, held that Supreme Court did not abuse its discretion when it granted the People’s motion to prevent the transfer of the adolescent offender’s case to Family Court. On the “no abuse of discretion” question, the majority and the dissenters agreed. The majority, however, went on to invoke its “interest of justice” jurisdiction, based on mitigating facts and the underlying purpose of the “Raise the Age (RTA)” legislation, to deny the People’s motion and allow the transfer to Family Court:

… [D]efendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground….  As a result, the young woman suffered minor injuries. At no point, including at the time of his arrest, did defendant take out, display, use, or fire [the] gun [found in his fanny pack]. Nor did he otherwise threaten to do so. * * *

Under the RTA, prosecutions of adolescent offenders — defined as 16 or 17 year olds charged with a felony — are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1]; CPL 722.23[1], [2] …). The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c] …). “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” … . * * *

… [D]efendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings. He participated avidly in sports teams and lessons. His maturity was importantly manifested by his demonstrated amenability to Family Court’s services. For example, defendant highlighted his improved school performance during the COVID-19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation. …

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court … . People v Key, 2026 NY Slip Op 05234, First Dept 9-3-26

Practice Point: Consult this opinion for an in depth discussion of the purpose and implementation of the “Raise the Age” legislation which allows the transfer of adolescent offenders’ felony prosecutions to Family Court.

Practice Point: Here the majority and the dissenters agreed Supreme Court did not abuse its discretion when it granted the People’s motion to deny the transfer of the adolescent’s case to Family Court, but the majority went on to invoke its “interest of justice” jurisdiction to reverse, something the Court of Appeals would not have the power to do.

 

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IN A MODIFICATION-OF-CHILD-SUPPORT PROCEEDING, EVEN WHERE THE MOVING PARTY MAKES OUT A PRIMA FACIE CASE SUPPORTING A REDUCTION, IF THE SUBMISSIONS RAISE QUESTIONS OF FACT A HEARING MUST BE HELD BEFORE A RULING IS MADE (SECOND DEPT).

The Second Department, reversing Family Court, determined that, even though defendant presented evidence supporting a downward modification of child support, the submissions by the parties raised questions of fact. Therefore the judge should not have ruled without holding a hearing. A recurring reason for Family Court reversals is the failure to hold a hearing:

The court may modify an order of child support where “there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236[B][9][b][2][ii][B] …). “However, such reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience” … . “‘On an application for modification of child support, a hearing is necessary where the parties’ evidentiary submissions disclose the existence of genuine issues of fact'” … .

Here, although the defendant demonstrated, prima facie, that his income had decreased by more than 15%, the reduction of income occurred through no fault of his own, and he made diligent efforts to secure comparable employment, a hearing is necessary because the parties’ evidentiary submissions disclosed the existence of genuine issues of fact … . Feldsherova v Lee, 2026 NY Slip Op 05080, Second Dept 8-26-26

Practice Point: Family Court reversals are often the result of the failure to hold a hearing.

 

NONRESPONDENT MOTHER REPORTED DOMESTIC ABUSE BY HER HUSBAND; AT THE FIRST COURT APPEARANCE, MOTHER AND HER CHILDREN WERE PLACED UNDER THE SUPERVISION OF THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS); IN THE FACE OF NO EVIDENCE MOTHER’S HOME AND CHILDREN WERE NOT WELL-CARED-FOR, FOR 18 MONTHS, SHE AND HER CHILDREN WERE SUBJECTED TO FREQUENT HOME VISITS, SEARCHES, COMMUNICATIONS WITH THE CHILDREN’S SCHOOL, AND VISITS BY LAW ENFORCEMENT; FAMILY COURT ACT SECTION 1054 DOES NOT AFFORD ACS SUCH BROAD POWERS OF SUPERVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rosado, determined the order which placed nonrespondent mother (Sasha C) under the supervision of the Administration for Children’s Services (ACS) was “unlawful and represented a broad overreach beyond the scope of power permitted by Family Court Act section 1054 and in contravention of its purpose.” Nonrespondent mother reported domestic abuse by her husband. From that point on the court placed her under ACS supervision which, for 18 months, entailed frequent home visits and searches, frequent communication with her children’s school, visits by law enforcement, and frequent court appearances, all in the face of no evidence the home and children were not well-cared for. The detailed description of the ACS’s intrusion into mother’s life is harrowing and well-worth reading:

Family Court erred when it placed the mother and her entire household under sweeping, overbroad, and unchecked “ACS supervision and household monitoring” in its May 31, 2024 order of fact-finding and disposition. The error was compounded by the issuance of the February 28, 2025 order extending the supervision despite the lack of good cause shown or a sound basis in the record. Such conditions of supervision run afoul of the power and purpose of Family Court Act § 1054. While the statute provides that a court may direct a nonrespondent parent to undertake certain actions with respect to the child released into their care to ensure their accessibility for services, appointments, visitation and the like, it is clear, based on the unambiguous language in the statute, that the court may not place a parent who has not been accused of any wrongdoing under ACS supervision at the postdispositional stage of the proceeding (id.; cf. Family Court Act § 1057). Even were we to accept ACS’s argument that the mother acquiesced to its request for supervision at the May 30, 2024 disposition, her agreement is irrelevant. It bears noting that the supervision proposed by ACS on that date to conduct “video visits with the children,” was a departure from the supervision that was exercised by ACS postdisposition.

To the extent that ACS argues that Family Court’s temporary extension of supervision over the mother’s household was reasonable given, among other things, the mother’s history of “failing to report the father’s neglect by domestic violence,” we once again find that ACS’s policy of pursuing supervision in such cases “reinforces the coercive control underpinning abusive relationships, turns survivors into suspects, and requires the nonrespondent parent to answer for the respondent parent’s abusive behaviors” and that adhering to such a policy would permit ACS to continue surveillance of the mother simply because the child’s father committed acts of domestic violence against her … . We reject this policy based on its faulty and unlawful premises … . Matter of L.M. (H.M.), 2026 NY Slip Op 05061, First Dept 8-20-26

Practice Point: This is an important opinion which places limits on the power of an agency, pursuant to Family Court Act section 1054, to subject a nonrespondent parent to supervision. Here nonrespondent mother reported domestic abuse by her husband. In the absence of any evidence her home and children were not well-cared-for, she was unlawfully subjected to home visits and searches, unwarranted communications with the children’s school, even visits by law enforcement, for a period of 18 months.

 

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THE JUDGE DISMISSED FATHER’S NEW YORK CUSTODY PETITION BECAUSE MOTHER HAD PREVIOUSLY COMMENCED A CUSTODY PROCEEDING IN FLORIDA; BECAUSE THE JUDGE DID NOT FOLLOW THE PROCEDURE MANDATED BY THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT, THE MATTER WAS REMITTED (SECOND DEPT).

The Second Department, reversed Family Court and remitted the matter. The Family Court judge dismissed the father’s New York custody petition on the ground mother had previously commenced a custody proceeding in Florida where she and the child resided. The judge, however, did not follow the procedures mandated by the Uniform Child Custody Jurisdiction and Enforcement Act which must precede a ruling that one of the two courts is the most appropriate forum:

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law article 5-A), a New York court “may not exercise its jurisdiction” in a child custody proceeding “if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with [Domestic Relations Law article 5-A], unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1] …). “If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 77-f …). “If the court of the state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A] does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2] …).

A court, acting pursuant to these provisions, must make a record of its communications with a court of another state on substantive matters, must promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75-i[4] …). The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2] …). Matter of Adames v Digangi, 2026 NY Slip Op 05022, Second Dept 8-19-26

Practice Point: Consult this decision for an explanation of the statutory procedure mandated when a judge must decide which of two forums is appropriate for a custody proceeding. Here mother commenced a custody proceeding in Florida and father subsequently commenced a custody proceeding in New York.

 

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