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ALTHOUGH A JUDGE HAS THE DISCRETION TO PROHIBIT A PARTY FROM BRINGING ANY FURTHER PETITIONS FOR CUSTODY MODIFICATION, HERE FAMILY COURT ABUSED ITS DISCRETION; FATHER HAD NEVER FILED FRIVOLOUS PETITIONS OR FILED PETITIONS OUT OF ILL WILL OR SPITE (SECOND DEPT). ​

The Second Department, modifying Family Court, determined Family Court should not have prohibited father from filing any further custody modification petitions because father had not filed frivolous petitions or filed petitions out of ill will or spite:

Family Court improvidently exercised its discretion in prohibiting the father from filing any further modification petitions without the permission of the court. “While public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” … . Here, there is no basis in the record to demonstrate that the father filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Freyer v Macruari, 2025 NY Slip Op 00217, Second Dept 1-15-25

Practice Point: Family Court has the discretion to prohibit a party from bringing any future custody modification petitions, it can only do so where the party has filed frivolous motions or has filed motions out of ill will or spite.

 

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HERE THE PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DISMISSED “WITH PREJUDICE” BECAUSE A FUTURE CHANGE IN CIRCUMSTANCES MAY WARRANT MODIFICATION (SECOND DEPT).

The Second Department, modifying Family Court, determined mother’s petition for a modification of custody should not have been dismissed “with prejudice” because a future change in circumstances could warrant modification:

Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Therefore, we delete that provision of the order appealed from and substitute therefor a provision dismissing the petitions without prejudice … . We note that child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances. Thus, a new petition may be filed where there has been a sufficient change in circumstances since the order or judgment sought to be modified was made … . Matter of Blackman v Barge, 2025 NY Slip Op 00214, Second Dept 1-15-25

Practice Point: Here the petition for modification of custody should not have been dismissed “with prejudice” because a future change in circumstances may warrant modification.

 

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COUNSELING OR TREATMENT SHOULD NOT BE MADE A CONDITION FOR ANY FUTURE MODIFICATION OF PARENTAL ACCESS; HOWEVER COUNSELING AND TREATMENT MAY BE MADE A COMPONENT OF CURRENT PARENTAL ACCESS (SECOND DEPT).

The Second Department, modifying Family Court, determined the court should not have made counseling or treatment a condition for any future modification of parental access, but Family Court appropriately directed mother to submit to treatment as a component of her current parental access:

… [A] “court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order” … . “However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights” … . Here, the Family Court should not have conditioned any future modification of the mother’s parental access with the child, in effect, upon her enrollment in mental health treatment and her resulting improvement in mental status, emotional regulation, psychological functioning, and empathy for the child … . Nonetheless, to the extent the court directed the mother to submit to such treatment as a component of her parental access, this was proper … . Matter of Nathaniel v Mauvais, 2025 NY Slip Op 00223, Second Dept 1-15-257

Practice Point: Counseling or treatment can be made a component of current parental access but cannot be made a condition for any future modification of parental access.

 

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THE PETITION FOR GUARDIANSHIP OF THE CHILD SHOULD NOT HAVE BEEN DISMISSED BECAUSE PETITIONER IS NOT RELATED TO THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition for guardianship of the child should not have been dismissed on the ground petitioner was not a relative. The applicable provision of the Surrogate’s Court Procedure Act (SCPA 1703) states the petition can be brought by “any person:”

​Although the petitioner is not biologically related to the child, SCPA 1703, which is applicable to this proceeding (see Family Ct Act § 661), provides that a petition for the appointment of a guardian may be brought by “any person” (SCPA 1703 …). Nor was there any basis in the record to dismiss the petition with prejudice … .  Matter of Karma-Marie W. (Jerry W.), 2025 NY Slip Op 00104, Second Dept 1-8-25

Practice Point: Pursuant to SCPA 1703 “any person” may petition for guardianship of a child. There is no requirement that petitioner be related to the child.

 

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A MINOR INJURY TO ONE CHILD BY ANOTHER WHILE MOTHER WAS NAPPING NEARBY, AND A SUBSEQUENT VERBAL ARGUMENT WITH THE POLICE, DID NOT AMOUNT TO NEGLECT BY MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the single incident in which one child injured another while mother was napping and a subsequent verbal argument with the police did not amount to neglect:

Petitioner failed to show by a preponderance of the evidence that a minor accident involving two of the children while the mother was napping constituted neglect. The agency’s proof that the brother had a minor injury to his neck after an isolated incident did not establish that the child’s mental or emotional condition was impaired or in imminent danger of being impaired as a result of the incident, or that the mother failed to exercise a minimum degree of care … . Indeed, the brother was without any visible injury shortly after the incident. Nor did the incident cause any impairment or imminent danger to the daughter or to the baby, who was asleep in the next room. Although an isolated accidental injury may constitute neglect if the parent was aware of an intrinsically dangerous situation … , there is no evidence that the mother’s napping while the children were in close proximity and within earshot was intrinsically dangerous.

Similarly, Family Court’s finding that the mother’s interaction with the police in any respect rose to the level of neglect is not supported by a preponderance of the evidence. A verbal argument with a police officer did not pose any serious or potentially serious harm to the infant child, who was the only child with her at that time … . Matter of Rebecca F. (Danequea J.), 2025 NY Slip Op 00042, First Dept 1-7-25

Practice Point: One child inflicted a minor injury on another while mother was napping nearby. Subsequently mother argued with the police when she was not allowed back in the apartment to get her cell phone charger. These incidents did not support Family Court’s neglect finding.

 

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REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS; THE EVIDENCE DID NOT SUPPORT REMOVAL OF THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the removal of the children from mother’s care without notice violated mother’s due process rights. In addition, the evidence did not support the removal:

… [P]ursuant to a dispositional order, the children were released to their mother’s care with ACS [Commissioner of the Administration for Children’s Services] supervision. ACS moved pursuant to Family Court Act § 1061 to extend the period of supervision. Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted … . There was nothing in the language of the agency’s motion to put the mother on notice that the children might be removed from her care on the return date, and the record demonstrates that the mother was not given a meaningful opportunity to be heard on the issue … . Moreover, the agency maintained that it was in the children’s best interests to remain with the mother, and the children’s attorney supported the agency’s position.

Furthermore, Family Court’s decision to continue the children’s placement in the agency’s care until the next placement hearing was not supported by a sound and substantial basis in the record …  Contrary to the court’s conclusion, neither the initial neglect petition nor the order to show cause alleged that the mother used illicit substances or was impaired while taking care of the children. Moreover, during the 10-month period of supervision in 2023—2024, the mother submitted to at least three random drug screenings and tested negative for all illicit substances. When the mother underwent an evaluation by a credentialed alcohol and substance abuse counselor on February 1, 2024, she was not found to need any drug treatment services. Matter of E.I. (Eboniqua M.), 2025 NY Slip Op 00022, First Dept 1-2-25

Practice Point: Here removal of the children from mother’s care without prior notice to mother violated her due process rights. Removal was not supported by the evidence.

 

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HERE A SINGLE INCIDENT OF ALLEGED EXCESSIVE CORPORAL PUNISHMENT (GRABBING THE CHILD’S ARM AND SQUEEZING TIGHTLY) WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT FINDING; A NEGLECT FINDING CANNOT BE BASED UPON ALLEGATIONS NOT INCLUDED IN THE PETITION (SECOND DEPT).

The Second Department, reversing Family Court’s neglect finding and dismissing the petition, in a full-fledged opinion by Justice Voutsinas, determined the evidence of a single incident of alleged excessive corporal punishment (grabbing the child’s arm and squeezing it tightly) was not enough. The Second Department further noted that a neglect finding cannot be based on allegations not included in the petition:

This appeal concerns a finding of neglect against a parent in a proceeding pursuant to Family Court Act article 10, based upon an alleged incident of excessive corporal punishment. This appeal does not present us with an opportunity to resolve a novel legal question. It does, however, provide us with an opportunity to provide some guidance with regard to when a single incident of excessive corporal punishment may be sufficient to support a finding of neglect. This appeal also presents us with the opportunity to emphasize that a finding of neglect must be based on evidence establishing the allegations set forth in the petition before the court. Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition. * * *

The petition alleged, more specifically, that on or about June 7, 2021, the father had grabbed the child’s arm and squeezed it “really, really hard,” leaving “three circular, dark green marks” on the child’s shoulder, which appeared to be the size of finger prints.” The petition did not contain any allegations that the father had engaged in any other acts of aggression toward the child or regarding any misuse of alcohol. Matter of Elina M. (Leonard M.), 2024 NY Slip Op 06574, Second Dept 12-24-24

Practice Point: Consult this comprehensive opinion for a discussion of when a neglect finding can be based upon a single incident of alleged excessive corporal punishment.

 

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IN THIS JUVENILE DELINQUENCY PROCEEDING, THE JUVENILE’S BEHAVIOR—LOOKING AT THE UNDERCOVER VEHICLE AND TURNING HIS BICYCLE AROUND—DID NOT PROVIDE THE POLICE WITH REASONABLE SUSPICION JUSTIFYING THE STREET STOP (FIRST DEPT). ​

The First Department, reversing Family Court’s finding there was reasonable suspicion justifying the street stop of the juvenile, determined the officers’ observation of the juvenile’s “look[ing] in the direction of one of the unmarked vehicles, back pedal[ing], duck[ing], turn[ing] the bicycle around and rid[ing] in the opposite direction” was not sufficient. The police had been alerted to a gunshot in the area. A handgun was retrieved from the juvenile:

… [T]he totality of the circumstances did not support Family Court’s finding that the officer had reasonable suspicion to justify the stop, and his detention was unlawful because appellant’s “equivocal or innocuous behavior” was “susceptible of an innocent as well as a culpable interpretation” … . Police, in two unmarked vehicles, while canvassing the area in response to a “Shotspotter” sensor report of shots fired, observed appellant riding a bicycle on the sidewalk. An officer observed appellant look in the direction of one of the unmarked vehicles, back pedal, duck, turn the bicycle around and ride in the opposite direction. The officer found appellant’s actions suspicious, exited the vehicle, approached appellant, ordered him to stop, grabbed him by both wrists and pushed him against the wall. While appellant was detained another officer observed a bulge in appellant’s pocket, squeezed the pocket area and retrieved a firearm.

Although an officer observed an L-shaped object in appellant’s pocket during the detention, there is no evidence or any reasonable inference that the officer “was in a position to view the contraband absent the unlawful detention” … . Matter of W.P., 2024 NY Slip Op 06426, First Dept 12-19-24

Practice Point: Here the police were canvassing the area after a report of a gunshot. They stopped the juvenile after observing him look at their undercover vehicle and turn his bicycle around. A handgun was retrieved during the stop. The First Department held the observations did not provide the police with “reasonable suspicion” and the street stop was therefore not justified.

 

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THE ORDER OF FACT-FINDING IN THIS JUVENILE DELINQUENCY PROCEEDING WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE STREET STOP WAS NOT SUPPORTED BY REASONABLE SUSPICION; AND THE SHOWUP IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE (SECOND DEPT). ​

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the order of fact-finding was against the weight of the evidence, the appellant was stopped by the police in the absence of reasonable suspicion, and the victim’s identification of the appellant should have been suppressed. The victim was struck from behind and saw only the backs of the assailants’ heads. The identification was made from a police car at a distance of 240 feet, and the show-up identification procedure was unduly suggestive:

… [W]hile the complainant initially claimed that he had a momentary opportunity to see his alleged assailants’ faces after he stood up, he later acknowledged that he merely observed “the backs of their heads” as they fled. Moreover, the credibility of the complainant’s testimony was undermined by his claim to have been able to identify the appellant during a showup identification procedure from a significant distance in the backseat of a police car using only one eye. * * *

… [T]he testimony presented at the suppression hearing established that the police, using two police cars, stopped the appellant and two companions because they fit the general description given by the complainant of “black male[ ]” “youths” riding bicycles. The presentment agency did not present any evidence at the suppression hearing that the appellant and his companions were engaged in any suspicious behavior at the time of the police stop. Moreover, at the time of the police stop, the appellant was with only two companions, which conflicted with the complainant’s description of “five youths.” Under these circumstances, the evidence presented at the suppression hearing was insufficient to establish that the police had reasonable suspicion to stop the appellant … . * * *

Wayne Bowman, a police officer who accompanied the complainant during the showup identification procedure, testified at the suppression hearing that he assured the complainant that “[w]e’re far enough back they’re not going to be able to see you” and acknowledged that he and the complainant were positioned about the distance of “[a] football field” away from the appellant and his companions during the showup identification procedure. Moreover, the complainant acknowledged at the suppression hearing that prior to the showup identification procedure, Bowman told him that the police “had stopped people that fit the description.” Under these circumstances, the Family Court improperly determined that the showup identification procedure was reasonable and not unduly suggestive … . Matter of Ahmand T., 2024 NY Slip Op 06051, Second Dept 12-4-24

Practice Point: The identification-evidence in this juvenile delinquency proceeding was too weak to support the order of disposition.

Practice Point: The street stop was not supported by reasonable suspicion.

Practice Point: The showup identification procedure was unduly suggestive.

 

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ALTHOUGH THE PARTIES WERE DIVORCED IN COLORADO, THEY AND THEIR CHILDREN RESIDE IN NEW YORK; THE SUPPORT MAGISTRATE SHOULD NOT HAVE APPLIED COLORADO LAW IN DETERMINING FATHER’S SUPPORT OBLIGATION (SECOND DEPT).

The Second Department, reversing Family Court, determined the support magistrate should not have applied Colorado law. Although the parties were divorced in Colorado, the parties and the children all reside in New York:

“The Uniform Interstate Family Support Act . . . , ‘adopted in New York as article 5-B of the Family Court Act, grants continuing, exclusive jurisdiction over a child support order to the state that issued the order'” … . “As relevant herein, the issuing state loses such jurisdiction where none of the parties or children continue to reside in that state” … . Here, it is undisputed that the parties and their children reside in New York and that the mother registered the Colorado support order in this state. Thus, the Family Court, Westchester County, had jurisdiction to adjudicate the proceeding … .

Further, Family Court Act § 580-613(b) provides that, in a modification proceeding brought pursuant to section 580-613(a), the court “shall apply . . . the procedural and substantive law of this state” … . Here, the Support Magistrate improperly applied Colorado law in calculating the father’s modified support obligation … . Accordingly, the Family Court should have granted the mother’s objections. Matter of O’Connor v Shaw, 2024 NY Slip Op 06046, Second Dept 12-4-24

Practice Point: Here the parties were divorced in Colorado but they and their children reside in New York. New York has jurisdiction over the support proceedings. The Support Magistrate should not have applied Colorado law to the support calculation.

 

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