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AN IN DEPTH ANALYSIS OF THE JURISDICTIONAL PRIORITY ISSUES RAISED IN A CUSTODY MATTER REGARDING A NAVAJO CHILD, BORN TO A NAVAJO MOTHER IN NEW MEXICO, LIVING ON THE NAVAJO NATION RESERVATION IN UTAH, WITH FATHER RESIDING IN NEW YORK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mackey, grappled with the complex procedural and jurisdictional issues surrounding the custody of a Navajo child, born in New Mexico to a Navajo mother, living on the Navajo Nation reservation in Utah, and residing with father in New York. The issue is jurisdictional priority at the convergence of the Indian Child Welfare Act (ICWA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The opinion is far too complex to summarize here.  Matter of Kody II. v Shaunta JJ., 2026 NY Slip Op 03044, Third Dept 5-14-26

 

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FAMILY COURT SHOULD HAVE HELD A HEARING ON WHETHER MOTHER’S ADDRESS SHOULD BE KEPT CONFIDENTIAL; FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO THE THERAPIST TO DETERMINE FATHER’S LEVEL OF PARTICIPATION IN THE CHILD’S THERAPY (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined the court should have held a hearing on whether mother’s address could be kept confidential; and the court should not have delegated its authority to all the therapist to decide the extent father’s participation in the child’s therapy:

Section 154-b(2)(a) of the Family Court Act authorizes the court, on its own motion or upon the motion of any party or the child’s attorney, to permit the party or the child to keep his or her address confidential from an adverse party if the court finds that disclosure of the address or other identifying information would pose an unreasonable risk to the health or safety of a party or the child. Thus, the statute requires a fact-specific determination as to the possible effects of such disclosure. Although the mother sought an address confidentiality order and Family Court acknowledged the need for a separate hearing, ultimately holding the issue in abeyance, the record is devoid of any determination as to whether disclosure of the address would pose an unreasonable risk to the child. In the absence of such a finding, the directive requiring disclosure cannot be said to reflect a proper exercise of discretion.

Family Court further erred in authorizing the father to communicate with the child’s therapist and to participate in therapy at the therapist’s discretion. This provision effectively delegates to the treating therapist the authority to determine whether, when, and under what circumstances the father may have contact with the child, which is an issue reserved to the court … . The directive also contradicts the court’s finding that contact with the father would harm the child’s mental health, and risks inhibiting the child’s openness with the child’s therapist if the child knows disclosures could be shared with or occur in the father’s presence. Thus, the order undermines the therapeutic process and risks exacerbating, rather than alleviating, the child’s emotional distress. Matter of Monet O. v Leroy L.B., 2026 NY Slip Op 02788, First Dept 5-5-26

Practice Point: Before determining whether a party’s address should be kept confidential, Family Court should hold a hearing.

Practice Point: The Family Court should not delegate its authority to determine the level of father’s participation in the child’s therapy to the therapist.

 

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ALL PARTIES AGREE THE TWO SURROGACY AGREEMENTS ARE UNENFORCEABLE; MATTER REMITTED FOR A HEARING TO DETERMINE PARENTAGE BASED ON THE INTENT OF THE PARTIES AND THE BEST INTERESTS OF THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that both surrogacy agreements were unenforceable and the parentage determination should not have been made without a hearing on the intent of the parties and the best interests of the children:

… [T]here is no real dispute that neither surrogacy agreement meets the material requirements of Family Court Act article 5-C. The original surrogacy agreement is unenforceable because it was not signed by Robert (see Family Ct Act § 581-403 [a] [1]; [d]; see also § 581-402 [b] [3]). The second agreement is unenforceable because it was not executed prior to “the commencement of medical procedures in furtherance of embryo transfer” (§ 581-403 [b]). Thus, the court was required to determine parentage “based on the intent of the parties, taking into account the best interests of the child[ren]” (§ 581-407).

… [A]ll three parties to the second surrogacy agreement—Mary, Robert and the Surrogate—agree that their intent was for Mary and Robert to be the children’s parents, and none of them contemplated anyone else becoming a parent. … [O]n this record the court failed to give due consideration to the best interests of the children as required by the statute (see Family Ct Act § 581-407; see also § 581-701 …). We therefore reverse the … judgment of parentage, and we remit the matter to Family Court to hold an immediate hearing at which the court, in making its parentage determination, must consider evidence of the intent of the parties, taking into account evidence pertaining to the best interests of the children. Matter of Baby A. (Mary B.L.–Robert A.L.), 2026 NY Slip Op 02759, Fourth Dept 5-1-26

Practice Point: Consult this decision for insight into how a court should handle determining parentage where the surrogacy agreements are unenforceable.

 

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UPON RESPONDENT’S FAILURE TO APPEAR, FAMILY COURT DISMISSED RESPONDENT’S COUNSEL AND HELD THE ORDER-OF-PROTECTION HEARING IN RESPONDENT’S ABSENCE; RESPONDENT WAS DENIED DUE PROCESS OF LAW; ORDER VACATED (THIRD DEPT).

The Third Department, reversing Family Court, vacated the order of protection issued upon respondent’s “default” based on the denial of respondent’s due process rights:

Petitioner commenced this proceeding in November 2023 seeking an order of protection against respondent. After an initial appearance and subsequent conferences at which the parties variously appeared virtually, in person or through counsel, respondent failed to appear for the April 2024 in-person hearing. Family Court directed respondent’s counsel to leave the courtroom, at which point respondent’s counsel offered to have respondent appear virtually, asserting that respondent was in “hiding” in light of criminal charges filed against petitioner in connection with her alleged stalking of, and firing a rifle at, respondent in August 2023. The court implicitly denied respondent’s request by again directing respondent’s counsel out of the courtroom. The hearing proceeded, during which petitioner testified and was subject to cross-examination by the attorney for petitioner’s children. …

Typically, “[a] party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense to the underlying claim” … . “No such showing is required, however, where a party’s fundamental due process rights have been denied” … . In this case, respondent’s counsel attended in person evidently ready to proceed, offered an excuse for respondent’s nonappearance and provided an alternate means to move forward in his absence … . Respondent’s counsel made no application to withdraw, and Family Court did not relieve respondent’s counsel, and thus respondent’s attorneys remained counsel of record when they were dismissed from the courtroom without explanation (see CPLR 321 [b] …). The court’s atypical conduct in that regard, coupled with the court’s choice to decline available options to proceed in respondent’s absence, deprived respondent of his opportunity to be heard (see CPLR 321 [a] …). Matter of April V. v Jonathan U., 2026 NY Slip Op 02702, Third Dept 4-30-26

Practice Point: An order issued upon a party’s default may be vacated when the party’s due process rights were violated by the judge. Here the judge ordered the party’s counsel to leave and held the hearing in the party’s absence after the counsel explained the party’s absence and offered to proceed virtually.

 

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FATHER IN THIS CHILD SUPPORT MATTER WAS ESSENTIALLY FORCED TO PROCEED PRO SE BY THE SUPPORT MAGISTRATE IN VIOLATION OF FATHER’S RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court in this child-support matter, determined father was essentially forced to proceed pro se by the support magistrate, in violation of his right to counsel:

… [T]he Support Magistrate relieved the father’s assigned counsel upon the father’s request.

At the next proceeding … , the father appeared without counsel and indicated that he had not been assigned a new attorney. The Support Magistrate advised the father that a hearing on the mother’s violation petition was scheduled for that date and asked the father if he intended to “present a defense on [his] own, . . . not participat[e], or hir[e] an attorney.” After the father gave a nonresponsive answer, the Support Magistrate stated that “the Court will proceed on the [father’s] default.” The father again protested that he did not have an attorney. The Support Magistrate then found that the father “is choosing not to participate in the proceedings.” In an order of disposition … , the Support Magistrate found that the father willfully violated the prior order of child support. * * *

… [T]he record demonstrates that the father “did not wish to proceed pro se, but was forced to do so” … . At the proceeding on August 28, 2024, the father repeatedly protested that he did not have an attorney, and the Support Magistrate did not conduct an inquiry to determine whether the father was waiving his right to counsel or address the possibility of assigning new counsel to the father … . Moreover, although the Support Magistrate had previously cautioned the father against self-representation when the father’s former assigned counsel was relieved, the Support Magistrate at no point conducted a sufficiently searching inquiry to ensure that the father was knowingly, voluntarily, and intelligently waiving his right to counsel … . Matter of Baldwin v Peterkin, 2026 NY Slip Op 02647, Second Dept 4-29-26

Practice Point: Before allowing a party to proceed pro se, the judge or magistrate must conduct a searching inquiry to ensure the party is aware of the dangers. It is a constitutional violation to “force” a party to proceed without an attorney.

 

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MOTHER ASKED TO REPRESENT HERSELF IN THIS CUSTODY PROCEEDING AND THEN DEFAULTED; THE ISSUE IS APPEALABLE DESPITE THE DEFAULT; THE JUDGE’S FAILURE TO CONDUCT A SEARCHING INQUIRY UPON MOTHER’S REQUEST TO REPRESENT HERSELF REQUIRED REMITTAL AND A NEW HEARING ON THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court and ordering a new custody hearing, determined Family Court did not conduct an adequate inquiry before accepting mother’s waiver of the right to counsel. The issue was appealable despite mother’s default:

At the mother’s initial appearance, Family Court advised the mother that she had the right to counsel, and the mother indicated that she planned to represent herself. The court scheduled a hearing on the petitions and warned the parties that, if a party failed to appear, the court would dismiss that party’s petition and proceed without the party. The mother failed to appear at the hearing, and the court noted her default and proceeded on the father’s petition. The mother now appeals from an order that, inter alia, dismissed her petition and awarded the parties joint custody of the children. * * *

 The “request by a party to waive the right to counsel and proceed pro se . . . places in issue whether the court fulfilled its obligation to ensure a valid waiver” and may be reviewed by this Court on an appeal by the subsequently defaulting pro se party … .

“[A] court’s decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of [the right to counsel]” … . “If a timely and unequivocal request [to proceed pro se] has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and voluntary” … . Although “[a] ‘searching inquiry’ does not have to be made in a formulaic manner” … , “the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . Matter of Crespo v Wynn, 2026 NY Slip Op 02517, Fourth Dept 4-24-26

Practice Point: In a custody proceeding, before accepting a party’s request to represent herself, the court must conduct a searching inquiry to make sure the party understands the dangers and disadvantages. The issue is appealable despite a subsequent default.

 

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MOTHER, WHO NOW RESIDES IN NEW YORK, MOVED TO MODIFY A TEXAS CUSTODY ORDER; BECAUSE TEXAS DID NOT CEDE JURISDICTION AND FATHER RESIDES IN TEXAS, FAMILY COURT DID NOT HAVE JURISDICTION; ALTHOUGH FAMILY COURT COULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND COMMUNICATED WITH THE TEXAS COURT, IT DID NOT (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined the judge did not have jurisdiction to grant mother’s petition to modify custody. The original custody order was issued in Texas, where father resides. Mother and child, with the permission of the Texas court, now reside in New York:

This case presents the difficult situation faced by a judge addressing a petition by a party who seeks to modify a custody order issued by a court of another state. Under the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] (Domestic Relations Law Art. 5-A, §§ 75 — 78-a), even where New York has become the child’s “[h]ome state” (Domestic Relations Law §75-a[7]), a New York judge does not have jurisdiction to modify a custody order issued by a foreign state unless either: 1) the foreign state cedes jurisdiction; or 2) neither the parents nor the child continue to reside in the foreign state (Domestic Relations Law § 76-b). Since neither of these situations was present in this case, Family Court had no jurisdiction to modify the custody order before it. Alternatively, if the New York judge determines that it is necessary to protect a child, sibling or parent, the court may take temporary emergency jurisdiction, communicate with the foreign court, and issue a time-limited order as necessary to protect the child and t0 permit the party seeking a modification to request it in the foreign court (Domestic Relations Law § 76-c). Here, since Family Court failed to communicate with the foreign court and failed to specify a time-limited duration for its order, it also did not appropriately take emergency jurisdiction. * * *

… [H]ad Family Court recognized that Texas had exclusive, continuing jurisdiction over its custody order that the mother sought to modify, it could have contacted the Texas court in order to determine whether the Texas court would relinquish jurisdiction, thus permitting Family Court to exercise jurisdiction to modify the Texas custody order pursuant to Domestic Relations Law § 76-b. If the Texas court did not agree to relinquish jurisdiction, Family Court could then determine whether it should take emergency jurisdiction and issue a time-limited order pursuant to Domestic Relations Law § 76-c. Matter of Natalie P. v Steven L.R., 2026 NY Slip Op 02458, First Dept 4-23-26

Practice Point: A New York court does not have jurisdiction to modify an out-of-state custody order unless the foreign state cedes jurisdiction or no party continues to reside in the foreign state.

 

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IT WAS ERROR FOR THE JUDGE TO DELEGATE TO THE ADMINISTRATION FOR CHILDREN’S SERVICES (ASC) THE AUTHORITY TO DETERMINE MOTHER’S THERAPEUTIC SUPERVISED PARENTAL ACCESS; ELEVEN-YEAR-OLD AUTHORITY TO THE CONTRARY SHOULD NOT BE FOLLOWED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined it was error for the judge to delegate to the Administration for Children’s Services (ACS) the authority to determine mother’s therapeutic supervised parental access. The Second Department made it clear that its decision to the contrary in Matter of Victoria P. (Victor P.), 121 AD 2d 1006, should no longer be followed:

Eleven years ago, in a proceeding pursuant to Family Court Act article 10, this Court, in Matter of Victoria P. (Victor P.) (121 AD3d 1006, 1007), held that a determination of the Family Court to limit the father to supervised parental access with the subject children at the discretion of the petitioning agency had a sound and substantial basis in the record. This holding seemingly indicated that a court may delegate its authority to set parental access to an agency in a proceeding pursuant to Family Court Act article 10. However, since that appeal was decided, this Court has made clear, in numerous other appeals, that a court may not delegate its authority in such a way as to permit a determination of parental access to be made by either a therapist, a parent, or by the subject children … . Considering the foregoing, and that “[t]he determination of visitation is entrusted to the court based upon the best interests of the children” … , to the extent that Matter of Victoria P. (Victor P.), stands for the proposition that a court in a proceeding pursuant to Family Court Act article 10 may delegate its authority to determine issues of parental access to an agency, that case should no longer be followed. Thus, here, the Family Court erred by delegating to ACS the authority to determine the mother’s therapeutic supervised parental access with the child … . Matter of Jayceon H. (Aniya M.), 2026 NY Slip Op 02405, Second Dept 4-22-26

Practice Point: A court cannot delegate its authority to determine issues of parental access to an agency.

 

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THE JUDGE SHOULD NOT HAVE GRANTED MOTHER A SUSPENDED JUDGMENT IN THIS NEGLECT PROCEEDING; THE SERIOUSNESS OF MOTHER’S CONDUCT WAS NOT ACKNOWLEDGED BY THE JUDGE (FIRST DEPT).

The First Department, reversing Family Court, determined the judge should not granted a suspended judgment in this neglect proceeding:

The court abused its discretion in granting the mother a suspended judgment. A court should not vacate a neglect finding except upon a determination that doing so serves the child’s best interests, including “consideration of a parent’s ability to supervise a child and eliminate any threat of future abuse or neglect” … . “[A]t its core, a suspended judgment affords a respondent the opportunity to correct his or her neglectful actions” … . Courts considering whether to grant a suspended judgment should examine four factors: “(1) the respondent’s prior child protective history; (2) the seriousness of respondent’s offense; (3) respondent’s remorse and acknowledgment of the abusive or neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court orders” (id. at 12 [internal quotation marks omitted]).

Here, Family Court failed to consider the second, third and fourth factors adequately. The trial court addressed the first factor by noting that the mother had no prior involvement with the child welfare system. As to the second factor, although the mother admitted inflicting excessive corporal punishment on [the child] on more than one occasion and causing him injury, Family court’s decision does not acknowledge the seriousness of the mother’s conduct. Matter of N.G. (Angelica T.), 2026 NY Slip Op 02198, First Dept 4-14-26

Practice Point: Consult this decision for insight into the factors Family Court must consider before granting a suspended judgment in a neglect proceeding. Here it was not enough that mother had no prior involvement with the child welfare system. The seriousness of her conduct must be considered.​

 

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

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

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

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

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

 

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