You are here: / Family Law

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:

​

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)

,

CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing Family Court, determined a child’s out of court statements about father’s physical abuse of mother was sufficiently corroborated by similar evidence concerning the children in a prior neglect proceeding:

​

A preponderance of the evidence established that the father neglected the subject children by perpetrating acts of domestic violence against the mother in their presence … . Contrary to the Family Court’s determination, the child’s out-of-court statement was sufficiently corroborated. Family Court Act § 1046(a)(vi) provides, in part, that “previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration.” Family Court Act § 1046(a)(i) provides, in part, that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent.” The child’s statement was corroborated by, among other evidence, proof of the father’s prior neglect of the children by perpetrating acts of domestic violence against the mother in their presence … . Additionally, contrary to the court’s further determination, the evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition ,,, . Moreover, a negative inference is properly drawn from the father’s failure to testify ,,, , Matter of Jubilee S. (James S.), 2017 NY Slip Op 03006, 2nd Dept 4-19-17

FAMILY LAW (CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)/EVIDENCE (FAMILY LAW, CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)/HEARSAY (FAMILY LAW, CHILD’S OUT OF COURT STATEMENTS ABOUT FATHER’S ABUSE OF MOTHER SUFFICIENTLY CORROBORATED BY EVIDENCE FROM A PRIOR NEGLECT PROCEEDING, PETITION SHOULD NOT HAVE BEEN DISMISSED)

,

PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION.

The Second Department determined father had a right to meaningful assistance of counsel in proceedings stemming from a failure to pay court-ordered child support. The court further found father’s counsel was ineffective because no attempt was made to submit proof father could not work due to his mental illness:

​

With respect to this proceeding, Family Court Act § 262(a)(vi) extends the right to counsel to “any person in any proceeding . . . in which an order or other determination is being sought to hold such person . . . in willful violation of a previous order of the court,” because such persons potentially may be incarcerated. The possibility of incarceration exists where a party fails to comply with a support order, since Family Court Act § 454(3) authorizes the court, upon a finding that a respondent “has willfully failed to obey any lawful order of support,” to “commit the respondent to jail for a term not to exceed six months.”

The statutory right to counsel afforded under Family Court Act § 262(a)(vi) would be “meaningless unless the assistance of counsel is effective” … . Accordingly, in support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, we hold that the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard.  Matter of Nassau County Dept. of Social Servs. v King, 2017 NY Slip Op 02992, 2nd Dept 4-19-17

 

FAMILY LAW (PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)/ATTORNEYS (FAMILY LAW, PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)/CHILD SUPPORT (PARTY FACING POSSIBLE INCARCERATION IN SUPPORT PROCEEDINGS IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL, FATHER HERE DID NOT RECEIVE MEANINGFUL REPRESENTATION)

BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY.

The Second Department determined the acknowledged biological father’s paternity petition was properly dismissed in the best interests of the child:

​

Pursuant to Family Court Act § 532(a), “[t]he court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the court’s own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests . . . to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman” (emphasis added). ” The paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child'” … . ” In situations where an individual has assumed the role of a father and where the petitioner putative father has neglected to assume such a role, the petitioning putative father has been estopped from asserting a claim of paternity'” … . “The issue of equitable estoppel does not involve the equities between [or among] the . . . adults; the case turns exclusively on the best interests of the child”… .

Here, the Family Court properly determined that it was in the best interests of the child to deny the petition. Among other things, the petitioner provided limited financial support for the child and had seen the child only approximately 20 times over the course of the child’s life. Additionally, the respondent’s husband, whose name appears on the birth certificate, had assumed the role of the child’s father, providing for the child financially and emotionally and living with the respondent and their other children as a family unit consistently for the entirety of the child’s life. As such, although the parties agreed that the petitioner was the child’s biological father, the court properly estopped the petitioner from asserting any paternity claim in the child’s best interests … . Matter of Carlos O. v Maria G., 2017 NY Slip Op 02993, 2nd Dept 4-19-17

 

FAMILY LAW (BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY)/PATERNITY (BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY)/ESTOPPEL (FAMILY LAW, PATERNITY, BIOLOGICAL FATHER ESTOPPED FROM ASSERTING PATERNITY)

,

ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, THE ATTORNEY MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY.

The Second Department determined plaintiff was entitled to summary judgment on liability in this action against plaintiff’s attorney alleging violation of ethics rules in setting a contingency fee in an equitable distribution matter. However the attorney may be entitled to payment under a quantum meruit theory:

​

The plaintiff demonstrated, prima facie, through the submission of the parties’ retainer agreement, that the defendant charged her a contingency fee in violation of rule 1.5(d)(5)(i) of the Rules of Professional Conduct (22 NYCRR 1200.0). Because the defendant’s fee was to be “determined by reference to the amount of . . . equitable distribution” in the form of the money judgment and subsequent enforcement stipulation, the retainer agreement violated rule 1.5(d)(5)(i) of the Rules of Professional Conduct (22 NYCRR § 1200.0). Contrary to the defendant’s argument, the enforcement of an equitable distribution award reduced to a money judgment is not exempt from rule 1.5(d)(5)(i) ,,, . The plaintiff also demonstrated prima facie that the defendant violated the rules set forth in 22 NYCRR 1400.3. In that respect, the retainer agreement did not specify how the defendant’s fee would be calculated if the plaintiff discharged the defendant “during the course of the representation” and did not specify how frequently itemized bills would be provided (22 NYCRR 1400.3). Additionally, the plaintiff did not receive itemized bills from the defendant … . In opposition, the defendant failed to raise a triable issue of fact. Medina v Kraslow, 2017 NY Slip Op 02979, 2nd Dept 4-19-17

ATTORNEYS (ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)/FAMILY LAW (ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)/CONTINGENCY FEES (FAMILY LAW, ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, SHE MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY)

NEGLECT FINDING REVERSED, CRITERIA EXPLAINED.

The Second Department, reversing Family Court, determined the neglect finding was not supported by the evidence. The child was removed from the hospital shortly after mother gave birth:

​

The Administration for Children’s Services (hereinafter ACS) filed a child neglect petition four days after the mother gave birth to the subject child in a Brooklyn hospital. During the initial days in the hospital, the child was placed in the room with the mother, where she took appropriate care of him. However, when the hospital personnel discovered that the mother only had income from public assistance and that she and the baby would not be accepted back into the home where the maternal grandmother was staying, they called ACS, which undertook an emergency removal of the child. It is undisputed that no ACS worker provided the mother with housing information, including emergency housing information, or provided any supplies for the child. After a fact-finding hearing, the Family Court found that the mother neglected the child. * * *

​

“At a fact-finding hearing in a neglect proceeding pursuant to Family Court Act article 10, a petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected”… . A neglected child is one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, shelter or education . . . though financially able to do so or offered financial or other reasonable means to do so”… . Actual or imminent danger of impairment is a “prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior”… . “Imminent danger . . . must be near or impending, not merely possible”… . Here, ACS failed to demonstrate, by a preponderance of the evidence, that the mother did not supply the child with adequate food, clothing, and shelter although financially able to do so or offered financial or other reasonable means to do so … . Matter of Zachariah W. v Dominique W., 2017 NY Slip Op 02801, 2nd Dept 4-12-17

 

FAMILY LAW (NEGLECT FINDING REVERSED, CRITERIA EXPLAINED)/NEGLECT (FAMILY LAW, NEGLECT FINDING REVERSED, CRITERIA EXPLAINED)

RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT IN THIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED.

The Third Department vacated Family Court’s order of disposition in the PINS matter finding that respondent had violated the terms of his probation. Respondent was never informed of his right to remain silent:

​

“Family Court Act § 741 (a) requires that at a respondent’s initial appearance in a proceeding and at the commencement of any hearing under Family Court Act article 7, the respondent and his or her parent or other person legally responsible for his or her care be advised of the respondent’s right to remain silent” … . … Respondent … argues that Family Court did not comply with Family Ct Act § 741 in this proceeding, … and our review confirms that Family Court failed to apprise him of his right to remain silent at either the initial appearance or fact-finding hearing. As a result, the appealed-from order of disposition must be vacated … . Matter of Daniel XX., 2017 NY Slip Op 02717, 3rd Dept 4-6-17

FAMILY LAW (RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT INT HIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED)/PINS (RESPONDENT NOT INFORMED OF HIS RIGHT TO REMAIN SILENT INT HIS PINS PROCEEDING, ORDER OF DISPOSITION VACATED)

,

CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT.

The First Department, over a two-justice dissent, determined that the child support provisions of a stipulation of settlement in this divorce action should not be enforced because the children’s right to child support was jeopardized. Because the stipulation put a cap on father’s child support obligations, it was possible payment of room and board (college) for one sibling could exceed the cap leaving the other siblings without support:

​

“[T]he parties cannot contract away the duty of child support. Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children’s rights are involved the contract yields to the welfare of the children. The duty of a parent to support his or her child shall not be eliminated or diminished by the terms of a separation agreement, nor can it be abrogated by contract” … .

The agreement here violates this rule. The credit sought by the father takes away that portion of child support intended for the welfare of the other two children. Taken to its logical end, the agreement threatens to completely deprive the other children of any support whatsoever, if monthly room and board costs for one child were to exceed $2,500. Keller-Goldman v Goldman, 2017 NY Slip Op 02723, 1st Dept 4-6-17

 

FAMILY LAW (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/CONTRACT LAW (STIPULATION OF SETTLEMENT, DIVORCE, CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/CHILD SUPPORT (STIPULATION OF SETTLEMENT, CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/STIPULATION OF SETTLEMENT (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)/DIVORCE  (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT WOULD NOT BE ENFORCED BECAUSE THE CAP ON CHILD SUPPORT MAY DEPRIVE CHILDREN OF THEIR RIGHT TO SUPPORT)

DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING.

The Third Department determined Family Court should not have dismissed the paternity petition based solely on the presumption of legitimacy and should have held a best interests hearing:

​

We agree with petitioner that, as he made the requisite threshold showing of “a nonfrivolous controversy as to paternity” … , his request for genetic testing should not have been denied in the absence of a best interests finding.

In enacting the statutory provisions, the Legislature plainly anticipated that cases involving the presumption of legitimacy may present themselves in which, based upon all of the circumstances, it will not be in a child’s best interests to order genetic testing… . Although respondents ask us to find that this is such a case, we are unable to exercise our broad power of review to render the best interests determination upon the present record. The limited testimony that was taken at the hearing failed to address many of the factors that have been recognized in similar proceedings as relevant to the issue of the child’s best interests. These include such factors as the child’s interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing … . * * *

​

Accordingly, the matter must be remitted for a hearing and a determination as to whether, based upon all of the circumstances, including the presumption of legitimacy, genetic testing would be in the child’s best interests … . Matter of Mario WW. v Kristin XX., 2017 NY Slip Op 02715, 3rd Dept 4-6-17

 

FAMILY LAW (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/PATERNITY (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)/LEGITIMACY, PRESUMPTION OF  (DESPITE THE PRESUMPTION OF LEGITIMACY IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A BEST INTERESTS HEARING)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy