Family Law – New York Appellate Digest

WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE MAJORITY OF THE TIME, THE PARENT WITH THE GREATER RESOURCES SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Iannacci, in a matter of first impression in the Second Department, determined that where custody is effectively shared equally the parent with the greater resources should be deemed the noncustodial parent for child support purposes:

We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents’ physical custody of the children in such a manner that “neither can be said to have physical custody of the children for a majority of the time” … . In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes … . * * *

.. [W]hile counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time … , the reality of the situation must also be considered where there is a closer division of parenting time. * * *

… [T]his is a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” … . Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” … . Matter of Smisek v DeSantis, 2022 NY Slip Op 05210, Second Dept 9-21-22

Practice Point: In a matter of first impression in the Second Department. the appellate court determined that where neither parent has custody of the children for a majority of the time, the parent with the greater resources should be deemed the noncustodial parent for child support purposes.

September 21, 2022/0 Comments/by Bruce Freeman

Appeals, Family Law, Judges

THERE WAS NO EVIDENCE MOTHER PREVIOUSLY FILED FRIVOLOUS VISTATION PETITIONS; THE JUDGE SHOULD NOT HAVE PROHIBITED HER FROM FILING FUTURE PETITIONS WITHOUT LEAVE OF COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should have prohibited mother from filing visitation petitions without leave of court:

The Family Court should not have prohibited the mother from filing petitions for visitation after October 22, 2021, without written leave of the court, since there is no basis in the record to demonstrate that the mother filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Genao-Archibald v Archibald, 2022 NY Slip Op 05166, Second Dept 9-14-22

Practice Point: If there is no evidence in the record that mother previously filed frivolous or spiteful petitions for visitation, the appellate court will reverse a judge’s prohibition of future petitions without leave of court.

September 14, 2022/0 Comments/by Bruce Freeman

Attorneys, Family Law, Judges

THE FAMILY COURT JUDGE HAD REPRESENTED MOTHER IN A RELATED CUSTODY MATTER YEARS BEFORE FATHER BROUGHT A PETITION TO MODIFY CUSTODY; THE JUDGE WAS STATUTORILY DISQUALIFIED FROM THE CURRENT PROCEEDING (THIRD DEPT).

The Third Department determined the Family Court judge in this custody proceeding should have recused himself because, as an attorney, he had represented the mother years before where custody was adjudicated. The judge did not remember representing mother, but disqualification was required by the applicable statute:

“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel” (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). “This prohibition is absolute and establishes a bright-line disqualification rule” … . Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define “an action, claim, matter, motion or proceeding” (Judiciary Law § 14), Black’s Law Dictionary defines a “claim” as “[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional” … .

… [O]ur jurisprudence recognizes that, except in limited circumstances, a parent has an existing and ongoing right to custody of and/or visitation with his or her children … , and it is undisputed that the November 2012 default order and the order on appeal both deal with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involve the same claim of custody, guardianship, or visitation for the same children, we find that Family Court was statutorily disqualified from the instant proceedings … . Matter of John II. v Kristen JJ., 2022 NY Slip Op 05132, Third Dept 9-8-22

Practice Point: It is a bright-line statutory rule that a judge who, as an attorney, represented mother in a custody proceeding is statutorily disqualified from presiding over the same parties in a subsequent custody proceeding.

September 8, 2022/by Bruce Freeman

Civil Procedure, Family Law

ALTHOUGH NEW YORK DID NOT HAVE JURISDICTION OVER THE MICHIGAN CUSTODY ORDER; FAMILY COURT SHOULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND HELD A HEARING ON THE CHILD’S SAFETY; THE CHILD WAS IN NEW YORK DURING FATHER’S PARENTING TIME WHEN FATHER BROUGHT A NEGLECT/CUSTODY PETITION IN NEW YORK (THIRD DEPT).

The Third Department, reversing Family Court, determined, although Family Court properly dismissed father’s neglect/custody petition on the ground New York did not have jurisdiction over the Michigan custody order, Family Court should have ordered a hearing about the child’s safety pursuant to the court’s temporary emergency jurisdiction. The child was in New York during father’s parenting time at the time father filed the petition:

Under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act], a New York court has jurisdiction to make an initial child custody determination under certain limited circumstances … . Here, the parties agreed that, as Michigan is the home state of the child, none of these statutory factors apply. Nevertheless, Domestic Relations Law § 76-c provides that “New York courts have ‘temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child'” … .

The AFC [attorney for the child] and the father contend that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing. We agree. Matter of Chester HH. v Angela GG., 2022 NY Slip Op 05002, Third Dept 8-18-22

Practice Point: Although New York did not have jurisdiction over a Michigan custody order and therefore properly dismissed father’s neglect/custody petition brought in New York when the child was in New York, Family Court should have exercised its temporary emergency jurisdiction and held a hearing on the child’s safety.

August 18, 2022/by Bruce Freeman

Civil Procedure, Evidence, Family Law, Negligence

SEXUAL ABUSE FINDINGS IN A FAMILY COURT PROCEEDING COULD NOT BE THE BASIS FOR APPLYING THE COLLATERAL ESTOPPEL DOCTRINE IN THIS CIVIL ACTION UNDER THE CHILD VICTIMS ACT; HEARSAY ADMITTED IN THE FAMILY COURT PROCEEDING IS NOT ADMISSIBLE IN THIS CIVIL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a substantial dissent, determined defendant in this Child Victims Act action was not collaterally estopped from disputing the sexual abuse allegations based upon the related Family Court proceedings. Hearsay evidence properly admitted in Family Court is not admissible in this civil action in Supreme Court:

… [A]lthough the burden of proof for both the Family Court proceeding and these personal injury actions is the same, i.e., preponderance of the evidence … , hearsay evidence that was admissible in the underlying Family Court proceeding would not be admissible in the instant personal injury actions … . Inasmuch as our determination in the prior Family Court proceeding was based largely on hearsay evidence that would not be admissible in these civil actions, we agree with defendant that he should not be collaterally estopped from defending these actions and that the court erred in granting plaintiffs’ motions for partial summary judgment on liability. Of Doe 44 v Erik P.R., 2022 NY Slip Op 04839, Fourth Dept 8-4-22

Practice Point: Here the sexual abuse findings in a Family Court proceeding could not be the basis for collateral estoppel prohibiting defendant from disputing the child abuse allegation in this Child Victims Act action. Hearsay admitted in the Family Court proceeding is inadmissible in this civil proceeding.

August 4, 2022/by Bruce Freeman

Contract Law, Family Law

THE POSTNUPTIAL AGREEMENT WAS NOT SIGNED UNDER DURESS AND WAS NOT UNCONSCIONABLE, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this divorce action, determined the postnuptial agreement was not signed under duress and was not unconscionable:

Initially, we conclude that the court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress “when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will” … . Generally, “the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing” … . “[T]he threat must be such as to deprive the party of the exercise of free will” … . Here, even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress … .

… [P]laintiff failed to sustain his burden of establishing that the 2017 agreement was unconscionable. “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense” … . The fact that defendant was represented by counsel but plaintiff was not is a factor for the court to consider, but is not dispositive … . As relevant here, in the 2017 agreement each party waived his or her rights in the other party’s separate property, which was defined in that agreement. … . …[T]he parties waived any right to receive maintenance. … Plaintiff … signed … three postnuptial agreements during the course of the marriage, and the testimony of both parties revealed that the parties conducted their finances in accordance with the terms of the agreements. … [I]t cannot be said that the 2017 agreement was such that it would “shock the conscience and confound the judgment of any [person] of common sense” … . Campbell v Campbell, 2022 NY Slip Op 04875, Fourth Dept 8-4-22

Practice Point: This decision includes concise descriptions of the criteria for determining whether a postnuptial agreement was signed under duress and whether the agreement is unconscionable.

August 4, 2022/by Bruce Freeman

Family Law

30-YEAR-OLD ALLEGATIONS OF FATHER’S SEXUAL ABUSE OF HIS 10-YEAR-OLD NIECE DID NOT JUSTIFY THE LIMITED PARENTING TIME AWARDED FATHER; FATHER HAD DEMONSTRATED HIS ABILITY TO PROVIDE FOR THE CHILDREN’S WELL-BEING AND THE CASEWORKERS HAD NO CONCERNS ABOUT FATHER (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined limiting father’s parenting time to six hours of supervised visits biweekly was not supported by the record. Presumably Family Court’s ruling was based upon sexual abuse allegations made by father’s 10-year-old niece 30 years ago:

… [T]he record contains evidence of the father’s demonstrated ability to provide for the children’s well-being. As established by the evidence, after the children exhibited concerning behavior, the father took overt and appropriate steps to address such behavior by, among other things, engaging in preventative services with the Ulster County Department of Social Services, enrolling the children in counseling and establishing boundaries with the children’s online activity. Child protective caseworkers testified on the father’s behalf and stated that they did not have any concerns regarding the father.

Considering all of the foregoing, we find that the record lacks a sound and substantial basis to support Family Court’s determination to provide the father with only six hours of biweekly, supervised parenting time … . Matter of Benjamin V. v Shantika W., 2022 NY Slip Op 04774, Third Dept 7-28-22

Practice Point: Allegations of sexual abuse by father’s 10-yearr-old niece made 30 years ago did not justify the limited supervised parenting time awarded father. The record demonstrated father’s ability to provide for the children’s well-being and the caseworkers testified they had no concerns about father.

July 28, 2022/by Bruce Freeman

Family Law

GRANDMOTHER’S PETITION TO MODIFY THE VISITATION ARRANGEMENT SHOULD HAVE BEEN GRANTED; MOTHER’S VIOLATION OF THE ORDER ALLOWING VISITATION BY GRANDMOTHER CONSTITUTED A CHANGE IN CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Family Court, determined the mother’s refusal to allow visitation with the child by the paternal grandmother, in violation of a court order, constituted and change in circumstances warranting the granting of grandmother’s petition to modify the visitation arrangement:

… [T]he paternal grandmother filed a petition to modify the order … , so as to establish a visitation schedule … , as well as a petition alleging that the mother was in violation of the order … . Following a hearing … the Family Court denied the modification petition and the violation petition … .

… [C]ontrary to the Family Court’s determination, the mother’s refusal to consent to any visitation between the child and the paternal grandmother pursuant to the March 19, 2018 order constituted a sufficient change in circumstances for the court to determine whether modification of the existing visitation arrangement was in the child’s best interests … . Moreover, the court’s determination that visitation with the paternal grandmother was not in the best interests of the child lacked a sound and substantial basis in the record. Although there is some history of animosity between the parties, “[a]nimosity alone is insufficient to deny visitation” … , and there is no indication in the record that the poor relationship between the parties had any adverse effect on the child such that the resumption of visitation would not be in the child’s best interests … .. We therefore remit the matter to the Family Court … to establish an appropriate visitation schedule … . Matter of Dubose v Jackson, 2022 NY Slip Op 04723, Second Dept 7-27-22

Practice Point: Here grandmother had been awarded visitation rights with the child. Mother’s violation of the order allowing visitation by grandmother constituted a change in circumstances warranting the granting of grandmother’s petition and modification of the visitation schedule.

July 27, 2022/by Bruce Freeman

Civil Procedure, Family Law

FATHER, WHO LIVES IN CALIFORNIA, SOUGHT MODIFICATION OF THE CALIFORNIA CUSTODY ORDER; MOTHER, WHO LIVES IN NEW YORK, SOUGHT MODIFICATION OF THE CALIFORNIA ORDER IN NEW YORK; FAMILY COURT CORRECTLY COMMUNICATED WITH THE CALIFORNIA COURT BUT DID NOT ALLOW THE PARTIES TO PRESENT FACTS AND LEGAL ARGUMENTS BEFORE DISMISSING THE NEW YORK PETITION; FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court did everything right in dealing with the modification of a California custody order, including communication with the California court, but did not allow the parties to present facts and legal arguments before ruling New York did not have jurisdiction. Father was in California and mother was in New York. Father sought modification of the custody order in California and mother sought modification of the custody order in New York:

“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 id. § 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” … .

When a court, acting pursuant to these provisions, communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record … . 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” … .

… [A]fter providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments. This did not comport with the requirements of Domestic Relations Law § 75-i(2), and, under the circumstances of this case, requires reversal … . Matter of Touchet v Horstman, 2022 NY Slip Op 04633, Second Dept 7-20-22

Practice Point: When a New York resident seeks modification of an out-of-state custody order, Family Court must communicate with the out-of-state court about whether the New York petition should be dismissed. Where the parties did not participate in the communication, before ruling, Family Court must allow the parties to present facts and legal arguments. Here the court’s failure to allow the parties to present facts and legal arguments required reversal.

July 20, 2022/by Bruce Freeman

Civil Procedure, Criminal Law, Family Law

A FAMILY OFFENSE PROCEEDING MAY BE BROUGHT IN THE COUNTY WHERE THE FAMILY MEMBER RESIDES, AS WELL AS IN THE COUNTY WHERE THE OFFENSE OCCURRED (SECOND DEPT).

The Second Department, reversing Family Court, determined the family offense proceeding should not have been dismissed based on the allegation venue was improper. A family offense proceeding may be brought based upon the residence of the family member, as well as were the offense took place:

A family offense proceeding pursuant to Family Court Act article 8 “may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides” … . Here, since the mother resides in Rockland County, the mother commenced this proceeding in a proper venue. Matter of VanDunk v Bonilla, 2022 NY Slip Op 04554, Second Dept 7-13-22

Practice Point: A family offense proceeding may be brought in the county where the family member resides, as well as the county where the offense occurred.

July 13, 2022/by Bruce Freeman