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FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED.

The Second Department, reversing Family Court, determined father’s motion to vacate the default dismissal of his visitation petition should have been granted. The court noted the liberal policy in favor of vacating defaults in this context:

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In custody proceedings pursuant to Family Court Act article 6, this Court has adopted a liberal policy in favor of vacating defaults… . Under the circumstances presented here, and in light of the policy favoring resolution on the merits in child custody proceedings, the father demonstrated a reasonable excuse for his failure to appear on March 1, 2016 … . The father’s absence was not willful. Notably, the father had never missed any prior scheduled Family Court appearances and had been compliant with all of the court’s directives. Moreover, there was no indication that a final determination of the petitions pending before the court would occur on the March 1, 2016, date. Finally, the father filed his motion to vacate within two months of the default. Under the totality of these circumstances, the court improvidently exercised its discretion in denying the father’s motion to vacate the March 2016 orders on the ground that his excuse for his absence was not reasonable … . Matter of Lemon v Faison, 2017 NY Slip Op 03953, 2nd Dept 5-17-17

FAMILY LAW (FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED)/DEFAULT (FAMILY LAW, FATHER’S MOTION TO VACATE THE DEFAULT DISMISSAL OF HIS VISITATION PETITION SHOULD HAVE BEEN GRANTED, LIBERAL POLICY IN FAVOR OF VACATING DEFAULT NOTED)

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MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER.

The Third Department, after noting that orders issued upon default are not appealable, determined mother, contrary to Family Court’s ruling, was not in default and therefore the order could be appealed:

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In the circumstances presented, the mother was not required to seek to vacate the default judgment before taking this appeal. A party may not appeal from an order entered on default (see CPLR 5511), but a party’s absence does not necessarily constitute a default, “particularly where counsel appears upon the absent party’s behalf and offers an explanation for his or her failure to attend” (… . Here, the mother’s counsel appeared and advised Family Court that he had communicated with the mother several times by phone and email, that she was then at a considerable distance in either Florida or South Carolina, and that she had a limited income. The mother’s counsel further advised the court relative to the mother’s position in the matter and participated in the proceedings by consenting to the requested relief, that is, to permit the child to remain temporarily with the father. Counsel also unsuccessfully requested a continuance, and ultimately advised that he did not have authority to consent to a final order of permanent physical placement to the father. In light of these circumstances, we find that the mother was not in default and that the order is appealable … . Matter of Linger v Linger, 2017 NY Slip Op 03822, 3rd Dept 5-11-17

FAMILY LAW (MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/APPEALS (FAMILY COURT, DEFAULT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)/DEFAULT (FAMILY COURT, MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING MOTHER’S ABSENCE, MOTHER, CONTRARY TO FAMILY COURT’S RULING, WAS NOT IN DEFAULT AND COULD APPEAL THE ORDER)

FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS.

The First Department, reversing Family Court, over a dissent, determined respondent father had demonstrated good cause for a modification of his visitation to allow “sandwich visits,” a half hour of unsupervised visitation between two periods of supervised visitation … . The fact that there was a pending permanent neglect proceeding was not an impediment to the change in visitation. Although father had a drug problem and had been incarcerated, he was working full time and had been drug free for some time:

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Although respondent has a history of drug abuse, which led to a period of incarceration, he has demonstrated his commitment to counseling and treatment, and has not tested positive for drugs since January 2016. Respondent has also demonstrated a desire to turn his life around, obtaining regular employment and endeavoring to build a relationship with the child, who is now almost six years old, by regularly attending the twice weekly supervised visits. It is undisputed that these visits have been positive for the child and that there are no concerns about the child’s safety in spending time with respondent.

Nor is there any evidence that the limited sandwich visits would be emotionally damaging for the child just because there is a possibility that respondent’s parental rights will be terminated at the end of the permanency proceeding. “No case has been cited for the proposition that a finding of permanent neglect and a goal of adoption are legal impediments to changing the nature of a parent’s visitation or increasing its frequency, and none has been found . . . Until the conclusion of disposition and the rendering of a decision, the outcome of this case remains uncertain” … . Matter of Gerald Y.-C. (Roland Y.), 2017 NY Slip Op 03843, 1st Dept 5-11-17

 

FAMILY LAW (FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)/VISITATION (FAMILY LAW, FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)/NEGLECT (FAMILY LAW, FATHER’S REQUEST FOR UNSUPERVISED VISITATION SHOULD NOT HAVE BEEN DENIED, NOTWITHSTANDING THE PENDING PERMANENT NEGLECT PROCEEDINGS)

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ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT CHILD NEGLECT PROCEEDING ORDER OF PROTECTION ISSUED BY THE SAME COURT.

The Second Department determined father could not move to modify an order of protection issued by the Integrated Domestic Violence (IDV) court in connection with a criminal conviction. The order of protection could be appealed as part of an appeal of the conviction, but the Criminal Procedure Law does not provide for modification of the order. In addition, an order of protection issued by the same court in related child neglect proceedings could not change the terms of the “criminal” order of protection unless that order indicated is was subject to subsequent orders of protection (which was not the case here):

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“[W]here a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court”… . The criminal court has authority to determine whether its order of protection is “subject to” subsequent orders pertaining to custody and visitation, and can decline to amend an order of protection to so provide … . Here, the order of protection … that was entered in the criminal action did not state that it was “subject to” subsequent orders pertaining to custody and visitation. Matter of Utter v Usher, 2017 NY Slip Op 03760, 2nd Dept 5-10-17

FAMILY LAW (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/CRIMINAL LAW (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/ORDERS OF PROTECTION (INTEGRATED DOMESTIC VIOLENCE COURT, ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)/INTEGRATED DOMESTIC VIOLENCE COURT (ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT NON-CRIMINAL ORDER OF PROTECTION)

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PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED.

The Third Department, reversing Family Court, determined petitioner, the maternal aunt, did not meet the heavy burden of demonstrating extraordinary circumstances warranting the removal of the child from the parents’ custody and the award of custody to petitioner. Temporary custody was awarded to petitioner on the basis of an abuse allegation that was deemed unfounded. The decision to remove the child from the parents’ custody was made after an investigation revealed the parents’ home was filthy, with feces on the floor and walls and a flea infestation. However, after the home was cleaned up and the parents moved back in the condition of the home remained acceptable. The parents arranged to move in with grandparents and the grandparents agreed to supervise and help the parents:

The ground of persistent neglect warranting disruption of parental custody rights at issue here requires a showing “that the parents engaged in gross misconduct or other behavior evincing an utter indifference and irresponsibility” relative to the parental role …  . This Court has previously held that “allowing . . . children to live in squalor” is among the parental behaviors that, considered together with other undesirable conduct, may constitute gross misconduct rising to the level of extraordinary circumstances … . At the outset, it bears noting that we are sympathetic to Family Court’s determination. The evidence at the fact-finding hearing revealed no mitigating explanation for respondents’ failure to maintain minimum sanitary standards in their home; both were unemployed during the time period before the inspection, and there was no evidence that either was hampered by any illness or disability. Joblessness and poverty undeniably lead to significant difficulties in maintaining adequate housing and hardships in raising children, but are not any cause for subjecting children to feces-strewn homes; such conditions result solely from lack of care. Nevertheless, … based upon all of the record evidence, we cannot find that petitioner satisfied her “heavy burden” to establish the existence of extraordinary circumstances … , and are thus constrained to reverse.

The record reveals that respondents immediately corrected the unsanitary conditions when directed to do so, such that child protective authorities permitted the younger children to return to live there. A caseworker testified that the house “exceeded minimal standards” after this intervention, and that respondents cooperated with child protective authorities throughout the investigation and followed through on everything that was asked of them. The father acknowledged that the previous conditions in the home were unacceptable, and both he and the mother testified that they would not let this happen again. The record does not reveal any further problems or complaints about respondents’ care of their children after the initial home visit. No further child protective actions were taken, the child was permitted to return to respondents’ home for regular visits during the pendency of the fact-finding hearing, and the younger children remained in respondents’ custody without interruption. Matter of Jennifer BB. v Megan CC., 2017 NY Slip Op 03576, 3rd Dept 5-4-17

FAMILY LAW (PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/CUSTODY (NON-PARENT, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NEGLECT (FILTHY LIVING CONDITIONS, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)/NON-PARENTS (CUSTODY, PARENTS REMEDIED THE FILTHY CONDITIONS OF THE HOME AND MADE ARRANGEMENTS TO LIVE WITH GRANDPARENTS, WHO AGREED TO SUPERVISE AND HELP THE PARENTS, FAMILY COURT’S AWARD OF CUSTODY TO AN AUNT REVERSED)

PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN.

The Fourth Department, reversing Family Court, determined the proof did not demonstrate father, who was incarcerated, abandoned the children. The Fourth Department noted that the failure to offer a meaningful plan for the children’s future is not relevant to an abandonment proceeding:

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A child is deemed abandoned where, for the period six months immediately prior to the filing of the petition for abandonment . . . , a parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or [petitioner], although able to do so and not prevented or discouraged from doing so by [petitioner]’ ” … . Here, the evidence established that the father, who was incarcerated for most of the six-month period immediately prior to the filing of the petition, contacted the children or petitioner every month during that period. The father wrote letters to the children and called, met with, and wrote letters to the children’s caseworker. We conclude that the father’s contacts were not minimal, sporadic, or insubstantial … . Moreover, during that period, the father filed a petition seeking custody or visitation with the children, which indicates that he did not intend to forego his parental rights … . Although Family Court’s finding that the father failed to offer a meaningful plan for the children’s future is relevant to a termination proceeding based on permanent neglect… , it is not relevant to a termination proceeding based on abandonment … . Matter of John F. (John F., Jr.), 2017 NY Slip Op 03369, 4th Dept 4-28-17

FAMILY LAW (PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN)/ABANDONMENT (FAMILY LAW, PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN)

FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION.

The Fourth Department, after finding father’s physical abuse of mother in the children’s presence justified a modification of custody, determined Family Court did not have the authority to order counseling as a prerequisite to father’s visitation:

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We agree with the father, however, that the court erred to the extent that it ordered that future modification of the father’s visitation is conditioned on completion of a parenting class. “[A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Thus, “the court lack[s] the authority to condition any future application for modification of [a parent’s] visitation on her [or his] participation in . . . counseling” … . Nevertheless, the court may order that a parent’s completion of counseling and compliance therewith “would constitute a substantial change of circumstances for any future petition for modification of the order” … , provided that “[n]othing in the order prevents the [parent] from supporting a modification petition with a showing of a different change of circumstances” … . We therefore modify the order by striking the provision requiring the father to complete a parenting class as a prerequisite for modification of visitation and substituting therefor a provision directing that he comply with that condition as a component of supervised visitation. Matter of Allen v Boswell, 2017 NY Slip Op 03312, 4th Dept 4-28-17

FAMILY LAW (FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)/VISITATION (FAMILY LAW, FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)/COUNSELING (FAMILY LAW, VISITATION, FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)

MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Family Court in this neglect proceeding, determined the matter should not have been disposed of based upon the mother’s purported default and mother’s attorney’s request for an adjournment should have been granted. The court noted that when, as here, a party’s attorney is present and participates in the proceeding a default finding is improper:

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“As we have repeatedly held, a respondent who fails to appear personally in a matter but nonetheless is represented by counsel who is present when the case is called is not in default in that matter” … . Moreover, inasmuch as the mother’s counsel objected on ten occasions during the inquest, this is not a situation where a default could be found based, at least in part, upon counsel’s ” election to stand mute’ ” during the inquest … . …

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We further agree with the mother that the court abused its discretion in denying her counsel’s request to adjourn the hearing. The request was based on the fact that the mother was unable to attend the hearing owing to illness. It is well settled that the grant or denial of a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Here, the record demonstrates that the mother contacted her counsel and petitioner prior to the hearing to report her illness, that the proceedings in this matter were not protracted, that the mother personally appeared at all prior proceedings, and that the request for an adjournment was the mother’s first… . Matter of Cameron B., 2017 NY Slip Op 03299, 4th Dept 4-28-17

 

FAMILY LAW (MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/DEFAULT (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)

REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s attorney’s request for an adjournment because mother could not attend the proceeding in which she was accused of committing two family offenses:

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We agree with the mother that the court abused its discretion in denying her attorney’s motion to adjourn the hearing because the mother was unable to attend. We therefore reverse the order on appeal and remit the matter to Family Court for further proceedings on the amended petition. In Family Court Act article 8 proceedings, the court “may adjourn a fact-finding hearing or a dispositional hearing for good cause shown on its own motion or on motion of either party” (Family Ct Act § 836 [a]). Although the court does not abuse its discretion in denying a request for an adjournment where the party making the request gives no reason for his or her absence … , here, the mother explained her absence. Moreover, the proceedings were not protracted, and the mother made no prior requests for an adjournment … . Matter of Drake v Riley, 2017 NY Slip Op 03282, 4th Dept 4-28-17

FAMILY LAW (REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)

JUDGE’S REFUSAL TO ACCEPT PARTIES’ AGREEMENT ON ALL BUT ONE ISSUE WAS AN ABUSE OF DISCRETION.

The Third Department expressed concern with the Family Court judge’s refusal to accept the parties’ agreement on nearly all issues, holding a hearing on all issues, and then making a finding which did not reflect the agreement. The matter was remitted for a hearing in front of a different judge:

On January 22, 2015, the date on which the matter was scheduled for a hearing, the parties reported to Family Court that they had resolved all outstanding issues, except for their dispute over a 2½ hour block of time on the Fridays that the father had physical custody of the child. The court responded that, “if we have a trial, everything is opened up and I don’t know what the other issues are.” The mother’s counsel replied, “[W]e’ve agreed to all the other issues.” The father’s counsel then advised that, despite some initial hesitancy as to where the child went to school, “the year ha[d] gone well [and] the child [was] doing well.” The colloquy continued, with Family Court inexplicably cautioning that, if the parties did not fully settle the case, it would consider directing that the child be enrolled in private school — an option neither party proposed or desired, and which the court had characterized as “[o]utrageously expensive.” Counsel for the mother eventually reiterated that they were “prepared to go forward on the trial on th[e] two-hour [pick-up] issue . . ., with everything else being resolved.” The father’s counsel responded, “likewise.” Family Court, however, persisted, stating, “If I’m going to sit here and we’re gonna (sic) hear testimony, I want to hear it all.” After a brief recess, counsel informed the court that the pick-up issue remained in dispute. The court stated, “We’re trying it on the whole issue of where is this child going to school and whether or not there were violations of the order of custody.” A hearing on all matters then ensued at the insistence of Family Court.

Family Court abused its discretion by not accepting the parties’ resolution to continue the child’s enrollment in the mother’s school district when there was no evidence that such agreement was not in the child’s best interests. At the time, the attorney for the child supported the parties’ proposed agreement. Moreover, the court’s concern that the mother violated the prior joint custody order by enrolling the child in the kindergarten program, without first informing the father, was unwarranted. No such violation was asserted by the father, and the mother endeavored to explain several times, without contradiction, that since the child had attended the pre-kindergarten program in her school district, the district continued the child’s enrollment in the kindergarten program. For these reasons, a new judge must be assigned upon remittal. Matter of Woodrow v Arnold, 2017 NY Slip Op 03081, 3rd Dept 4-20-17

 

FAMILY LAW (JUDGE’S REFUSAL TO ACCEPT PARTIES’ AGREEMENT ON ALL BUT ONE ISSUE WAS AN ABUSE OF DISCRETION)/JUDGES (FAMILY LAW, JUDGE’S REFUSAL TO ACCEPT PARTIES’ AGREEMENT ON ALL BUT ONE ISSUE WAS AN ABUSE OF DISCRETION)

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