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FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the judge in this custody proceeding should not have proceeded without a searching inquiry into whether father was making an intelligent waiver of his right to counsel:

At an appearance before the Family Court on the mother’s petition, the court advised the father of his right to counsel, and the father requested an adjournment to obtain an attorney. The court stated that it would email the father contact information for Legal Aid and scheduled a date for a virtual hearing on the petition. On the scheduled hearing date, the father appeared without counsel and the court did not inquire whether the father was waiving his right to counsel. The court commenced the hearing with the father proceeding pro se. By order … , the court, after the hearing, among other things, awarded the mother primary physical custody of the child, with parental access to the father. The father appeals.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel … . “A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel” … . “[T]o determine whether a party has validly waived the right to counsel, a court must conduct a searching inquiry to ensure that the waiver has been made knowingly, voluntarily, and intelligently” … .

Here, the Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … . Matter of Mercado v Arzola, 2023 NY Slip Op 00321, Second Dept 1-25-23

Practice Point: Here father, the respondent in a custody proceeding, had a right to counsel. The judge should not have proceeded with the hearing without making a searching inquiry into whether father was knowingly, intelligently and voluntarily waiving his right to counsel.

 

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THE ABANDONMENT PETITION SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE RESPONDENT FATHER INTENDED TO FOREGO HIS PARENTAL RIGHTS AND, IN FACT, PETITIONER AFFIRMATIVELY INTERFERED WITH FATHER’S ATTEMPTS TO MAINTAIN CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the petitioner (Schenectady County Department of Social Services) did not demonstrate father (respondent) had abandoned the children and, in fact, had improperly prevented father from visiting the children. The abandonment petition should have been dismissed:

… [P]etitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights … . The record demonstrates that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent has been an active participant during the entire proceeding … . Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The record further reflects that respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic.

… There are several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with [*3]the children due to his late confirmation of the scheduled visit or arrival — including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. * * *

Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker — who relied on text messages from the coordinator, who did not testify at the hearing — petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children. Matter of Syri’annah PP. (Sayyid PP.), 2023 NY Slip Op 00252, Third Dept 1-19-23

Practice Point: Here the caseworkers took steps to affirmatively prevent father from seeing his children. The abandonment petition should have been dismissed for failure to demonstrate father’s intent to forego his parental rights.

 

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ALLEGATIONS FATHER DID NOT ABIDE BY THE VISITATION TERMS AND USED DRUGS DURING VISITATION SUPPORTED MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY BASED UPON CHANGED CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s custody modification petition should not have been dismissed. Mother’s allegations that father had not abided by the visitation terms (visits must be in a public place) and father used drugs during visitation adequately alleged a change in circumstances:

To establish a change in circumstances, the party must demonstrate “new developments or changes that have occurred since the previous custody order was entered” … . Testimony at the fact-finding hearing established, by a preponderance of the evidence … that the father was not abiding by the visitation terms as set forth in the prior order…. . Specifically, although the prior order required that the father’s visitation occur in a public place, the preponderance of the proof demonstrated that much of it was occurring in private residences or hotels. Moreover, there was also testimony that the father was using drugs during the child’s visits. Given the circumstances of this case, the father’s failure to comply with the visitation terms as set forth in the prior order constitute a change in circumstances … . Matter of Harvey P. v Contrena Q., 2023 NY Slip Op 00257, Third Dept 1-19-23

Practice Point: Failure to abide by visitation terms can constitute a change in circumstances which will support a modification of custody.

 

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ALTHOUGH THE RECORD SUPPORTED FATHER’S PERMANENT NEGLECT AND THE TERMINATION OF FATHER’S PARENTAL RIGHTS, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING ABSENT FATHER’S CONSENT; MATTER REMITTED (THIRD DEPT). ​

The Third Department determined that although the record supported terminating father’s parental rights based upon permanent neglect, Family Court should not have dispensed with the dispositional hearing absent the consent of the parties:

Both petitioner and the attorney for the child share the position that Family Court properly dispensed of the matter without a separate dispositional hearing and, alternatively, that there is sufficient evidence in the record for this Court to render a disposition. However, Family Ct Act § 625 (a) expressly provides that, “[u]pon completion of [a] fact-finding hearing, [a] dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing” … . Here, the court stated that there was “no need for a further or separate dispositional hearing” before rendering its determination that respondent had permanently neglected the child and terminating his parental rights. However, there is no indication that respondent affirmatively consented to dispense with the hearing and, “absent consent, the requirement of a dispositional hearing may not be circumvented” … . Matter of Harmony F. (William F.), 2023 NY Slip Op 00259, Third Dept 1-19-23

Practice Point: Here, even though the record supported Family Court’s termination of father’s parental rights, in the absence of father’s consent, Family Court should not have dispensed with the dispositional hearing.

 

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FATHER MADE A PRIMA FACIE SHOWING THE NYC ADMINISTRATION OF CHILDREN’S SERVICES (ACS) SHOULD BE HELD IN CONTEMPT FOR FAILING TO PROVIDE UNREDACTED REPORTS OF CHILD ABUSE OR NEGLECT WHICH WERE DEEMED UNFOUNDED; MATTER REMITTED (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court and remitting the matter, determined father made a prima facie showing that the NYC Administration of Children’s Services (ACS) should be held in contempt for failing to provide unredacted reports of child abuse or neglect which were deemed unfounded. Father’s request for the unredacted documents should not have been denied absent a finding by Family Court the safety of the person(s) who made the report or cooperated with the investigation would be jeopardized by revealing the name(s):

As the subject of the unfounded reports, the father is a person entitled to receive access to the otherwise sealed reports (Social Services Law § 422 [5][a][iv]). * * *

… [F]ather made a prima facie showing of the elements necessary to hold ACS in contempt for its failure to fully comply with a lawful judicial subpoena …  The subpoena was a valid order expressing an unequivocal mandate, requiring ACS to produce “complete” investigation and unfounded reports of suspected child abuse concerning the children. ACS does not deny that it was aware of the order. Further, ACS did not comply with the subpoena, as it produced reports that redacted the names of sources, not complete reports. Finally, the father suffered prejudice, because his modification petition alleges that the mother was causing false abuse reports to be filed with the authorities, and the unredacted unfounded reports may be admissible in such a proceeding … .

Once the father met his prima facie burden, it was incumbent on ACS to refute the showing or to offer evidence of a defense … . ACS asserted that Social Services Law §422(7) permits the commissioner “to prohibit the release of data that would identify the person who made the report or who cooperated in a subsequent investigation . . . which he reasonably finds will be detrimental to the safety or interests of such person.” However, there was no indication that any such determination had actually been made. Matter of Michael Y. v Dawn S., 2023 NY Slip Op 00193, First Dept 1-17-23

Practice Point: Under the Social Services Law, the NYC Administration of Children’s Services (ACS), in response to a judicial subpoena, must provide unredacted reports of child abuse or neglect which were deemed unfounded, unless ACS can demonstrate revealing the names of the sources of the reports jeopardizes the safety of those sources.

 

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​ THE MAJORITY HELD THE EVIDENCE DID NOT ESTABLISH DISORDERLY CONDUCT AS A FAMILY OFFENSE, FINDING THE CONDUCT WAS NOT “PUBLIC;” THE DISSENT ARGUED THE CONDUCT WAS “PUBLIC” IN THAT IT TOOK PLACE IN THE PRESENCE OF ADULTS AND CHILDREN OUTSIDE A DAYCARE CENTER (THIRD DEPT).

The Third Department, over a dissent, determined the evidence did not establish a family offense (disorderly conduct): The majority and the dissenter disagreed on whether the conduct was “public” in nature:

“[C]ritical to a charge of disorderly conduct is a finding that [the mother’s] disruptive statements and behavior were of a public rather than an individual dimension . . ., which requires proof of an intent to threaten public safety, peace or order” … . “[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem” … .

From the dissent:

[The] disruptive behavior outside a daycare program in the direct presence of other adults and children took on a public dimension that was no doubt alarming to the grandmother, the child and the bystanders. Whether intentional or not, such conduct satisfies the reckless component for the charge. On this record, the charge of disorderly conduct within the petition was established by a preponderance of the evidence and should have been sustained (see Penal Law § 240.20 [1], [3] …). Matter of Linda UU. v Dana VV., 2023 NY Slip Op 00013, Third Dept 1-5-22

Practice Point: In order for conduct to amount to disorderly conduct it must have a “public” as opposed to an “individual” dimension. This case shows the distinction can be difficult to discern.

 

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ALTHOUGH DEFENDANT-WIFE’S ATTORNEY IN THIS DIVORCE ACTION MISSED A COUPLE OF THE 60-DAY BILLING PERIODS, THE ATTORNEY WAS IN SUBSTANTIAL COMPLIANCE WITH 22 NYCRR 1400.3(9) AND THE WIFE’S REQUEST FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DENIED; $135,315.90 AWARDED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant-wife’s attorney was in substantial compliance with the billing requirements of 22 NYCRR 1400.3(9) and the wife’s request for attorney’s fess in this divorce action should not have been denied:

… [T]he defendant’s attorney was in substantial compliance with 22 NYCRR 1400.3(9) … . Although the attorney for the defendant was dilatory in sending an initial invoice approximately 154 days after he was retained, the billable hours during that interval were itemized and accounted for, and the remainder of the invoices he sent all complied with the 60-day rule. Under the circumstances, the court should not have precluded the defendant from recovering an award of attorneys’ fees for failure to comply with 22 NYCRR 1400.3(9), and we conclude that the plaintiff should be responsible for the balance of the defendant’s attorneys’ fees and expenses, net of his prior payments, less $3,487.50 related to a duplicative motion for expenses, which amounts to $135,315.90. Spataro v Spataro, 2022 NY Slip Op 07470, Second Dept 12-28-22

Practice Point: 22 NYCRR 1400.3(9) requires attorneys in divorce proceeding to bill every 60 days. Here the attorney missed a couple of the 60-day billing periods but the client’s request for attorney’s fees should not have been denied on that ground. The appellate division awarded $135,315.90.

 

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THE AMENDED STATUTE CHANGING THE CRITERIA FOR NEGLECT BASED ON MARIHUANA USE WENT INTO EFFECT TWO DAYS BEFORE THE HEARING AND WAS NOT APPLIED TO THE FACTS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, modifying Family Court, determined whether mother neglected the children within the meaning of the statute as amended by the Marihuana Regulation and Taxation Act required remittal:

“The Marihuana Regulation and Taxation Act …  amended Family [Court] Act § 1046 (a) (iii) … by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided ‘[that there is] a separate finding that the child’s physical[,] mental or emotional condition was impaired or is in imminent danger of becoming impaired’ ” … . The amendment to section 1046 (a) (iii) went into effect … two days before the court rendered its decision in this case and, “[a]s a general matter, a case must be decided upon the law as it exists at the time of the decision” … . Inasmuch as petitioner’s presentation of evidence was based on the state of the law at the time of the hearing, however, petitioner may not have fully explored the issue of impairment. We therefore remit the matter to Family Court to reopen the fact-finding hearing on the issue whether the children’s condition was impaired or at imminent risk of impairment as a result of the mother’s use of marihuana … . Matter of Gina R. (Christina R.), 2022 NY Slip Op 07321, Fourth Dept 12-23-22

Practice Point: The Family Court Act was amended to prohibit a finding of neglect based solely on marihuana use unless there is a finding the child’s physical, mental or emotional condition was impaired or in danger of being impaired by the marihuana use.

 

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EVEN THOUGH THERE WAS A PRIOR STIPULATED ORDER OF CUSTODY AND VISITATION GRANTING PRIMARY CUSTODY TO GRANDMOTHER, THE NONPARENT (GRANDMOTHER), NOT THE FATHER, HAS THE BURDEN TO SHOW EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE DENIAL OF FATHER’S SUPERIOR RIGHT TO CUSTODY BEFORE THE BEST INTERESTS OF THE CHILDREN CAN BE CONSIDERED PURSUANT TO FATHER’S PETITION TO MODIFY CUSTODY (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court, determined, in a modification of custody case, the nonparent (grandmother here), not the father, has the burden to demonstrate extraordinary circumstances exist before the court can consider the best interests of the children:

Pursuant to the prior order, the parties share joint legal custody of the subject children, with the grandmother having primary physical custody and the mother and the father having visitation under separate visitation schedules. …

Petitioner father appeals from an order granting the motion of respondent Dawn M. Freeland (grandmother), made at the close of the father’s case at a hearing, to dismiss his petition seeking modification of a prior stipulated order of custody and visitation, and his petition alleging that the grandmother violated that prior order. …

… [T]he court erred in requiring the father to prove that there had been a change in circumstances prior to making a determination regarding extraordinary circumstances … . “It is well settled that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … . “The nonparent has the burden of establishing that extraordinary circumstances exist,” and “it is only after a court has determined that extraordinary circumstances exist that the custody inquiry becomes ‘whether there has been a change [in] circumstances [warranting further inquiry into] the best interests of the child[ren]’ ” … . “The foregoing rule applies even if there is an existing order of custody concerning th[e] child[ren] unless there is a prior determination that extraordinary circumstances exist” … . Here, “there is no indication in the record that, in the history of the parties’ litigation, the court previously made a determination of extraordinary circumstances divesting the [father] of [his] superior right to custody” … . Matter of Wells v Freeland, 2022 NY Slip Op 07375, Fourth Dept 12-23-22

Practice Point: Here father brought a violation-of-visitation petition against grandmother and petitioned for a modification of custody which had been agreed to by a stipulated order. Family Court held the father had the burden to show extraordinary circumstances justifying modification of custody. The appellate division disagreed and held the nonparent (grandmother) had that burden because father still had the superior right to custody which could not be disturbed absent extraordinary circumstances. The prior stipulated order of custody and visitation was not a substitute for an extraordinary-circumstances finding.

 

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THE JUDGE’S FAILURE TO MAKE FINDINGS OF FACT IN THIS VISITATION PROCEEDING REQUIRED REMITTAL FOR A NEW HEARING (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the judge’s failure to make findings of fact in the visitation proceedings required remittal:

Although the court recited that its determination was based upon the proof adduced at the fact-finding and Lincoln hearings, it did not make factual findings. Furthermore, the record is also not sufficiently developed in order for us to make an independent determination. In this regard, at the fact-finding hearing, the father withdrew his request for in-person visitation with the child and, on appeal, the father requests monthly telephone contact with the child. The mother testified that she opposed additional visitation than what was provided for in the 2013 order because the child showed signs of fear and apprehension, did not have a relationship with the father and was not engaged in writing letters to the father. The mother also testified that the child has a fear associated with prison and violence.

Other than the mother’s conclusory testimony, there was scant evidence, if any, demonstrating that the child having telephone contact with the father would be detrimental to the child’s welfare … . Moreover, even crediting the mother’s testimony about the child’s fear, it is unclear whether such fear relates to in-person visitation with the father at a prison or to telephone calls, as the father now requests. Because the record evidence is not sufficiently developed to determine whether the father should be awarded monthly telephone contact with the child, the matter must be remitted for a new hearing … . Matter of Anthony T. v Melissa U., 2022 NY Slip Op 07287, Third Dept 12-22-22

Practice Point: In this “expansion of visitation” proceeding, the judge did not make findings of fact and the record was not sufficient for the appellate court to rule, the case was remitted to Family Court for a new hearing.

 

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