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UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY.

The Fourth Department, reversing Family Court, determined, pursuant to the criteria recently announced by the Court of Appeals, the grandparents had standing to contest a custody petition by mother. The child, now six years old, had lived with the grandparents since birth and mother, who has a good relationship with the child, had never before sought custody:

Approximately six months after the court issued its order, the Court of Appeals reversed our decision in Suarez and clarified what constitutes extraordinary circumstances when the nonparent seeking custody is a grandparent of the child. In that context, extraordinary circumstances may be demonstrated by an “extended disruption of custody, specifically: (1) a 24-month separation of the parent and child, which is identified as prolonged, (2) the parent’s voluntary relinquishment of care and control of the child during such period, and (3) the residence of the child in the grandparents’ household” (Suarez, 26 NY3d at 448 … ).

Evaluating those three elements in light of the facts of this case, we agree with respondents and the Attorney for the Child that respondents met their burden of establishing extraordinary circumstances, thereby giving them standing to seek custody of the child. It is undisputed that the child has lived in respondents’ home since he was born, when petitioner consented to give respondents primary physical custody of him. Although the child has a good relationship with petitioner and has frequent visitation with her, petitioner has never made, in nearly six years, any serious attempts to regain custody or resume a parental role in the child’s life. Inasmuch as petitioner voluntarily relinquished custody to respondents and has been separated from the child for a prolonged period of well over 24 months, during which time the child has resided in respondents’ home, we conclude that respondents established the requisite extraordinary circumstances … . Matter of Orlowski v Zwack, 2017 NY Slip Op 00880, 4th Dept 2-3-17

 

FAMILY LAW (UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY)/CUSTODY (UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY)/STANDING (FAMILY, GRANDPARENTS, CUSTODY, UNDER CRITERIA RECENTLY ANNOUNCED BY THE COURT OF APPEALS, GRANDPARENTS HAD STANDING TO CONTEST MOTHER’S PETITION FOR CUSTODY)

MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING.

The Second Department, reversing Family Court, determined mother’s modification of custody petition should not have been denied without a hearing:

Here, the mother established her entitlement to a hearing on the basis of changed circumstances. Specifically, the mother made a sufficient evidentiary showing in support of her allegations that the father sexually abused the oldest child and that, as a result of the ensuing litigation, the mother’s relationship with the father had deteriorated to the point that they could no longer communicate, and the oldest child was no longer visiting with the father … . Moreover, the “narrow exception” to the general requirement that a hearing be held is inapplicable in this case … . The dismissal of the article 10 [alleging sexual abuse of the oldest child by father] proceeding pursuant to an adjournment in contemplation of dismissal was not a dismissal on the merits and it did not resolve the allegations of sexual abuse … . Indeed, no evidentiary hearing was held in the article 10 proceeding, and the Family Court never made any findings of fact in that proceeding regarding the allegations of sexual abuse. In sum, the court should not have dismissed the mother’s modification petition without a hearing … . Matter of Chess v Lichtman, 2017 NY Slip Op 00644, 2nd Dept 2-1-17

FAMILY LAW (MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/CUSTODY (MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)

REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST.

The First Department determined it was in the child’s best interest to deny respondent’s request for a DNA paternity test:

Family Court properly determined that it is in the child’s best interest to equitably estop respondent from having a DNA test to establish paternity (see Family Ct Act § 532[a]). Clear and convincing evidence demonstrates that respondent held himself out as the father of the child and that the now 10-year-old child considers respondent to be his father … . The child lived with respondent, his mother and siblings for about two years, calls respondent “dad” and spends time with him on birthdays and holidays, including Father’s Day. Respondent introduced the child to his family and friends as his son, and allowed the child to spend time and develop relationships with his family. Issues of credibility were for Family Court to resolve and its determination to credit the testimony of the mother and the child and to reject that of respondent is supported by the record … . Matter of Commissioner of Social Servs. v Dwayne W., 2017 NY Slip Op 00595, 1st Dept 1-31-17

FAMILY LAW (REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST)/PATERNITY (REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST)/DNA (FAMILY LAW, PATERNITY, REQUEST FOR DNA PATERNITY TEST PROPERLY DENIED, NOT IN THE CHILD’S BEST INTEREST)/

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FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE.

The Third Department, in a decision too detailed to fairly summarize here, determined Family Court’s many mistakes, which have resulted in mother’s inability to visit with her children for years, required a new hearing in front of a different judge. The Third Department had reversed the termination of mother’s parental rights in 2013. Family Court, however, refused to reinstate her parental rights and mother has been fighting to be allowed supervised visitation ever since:

… [W]e must address Family Court’s flawed understanding of the legal effect of our October 2013 order reversing the orders that terminated the mother’s parental rights to the children. Inexplicably, Family Court incorrectly and repeatedly stated on the record that there was no declaration by this Court that the mother’s parental rights or any prior orders were reinstated and that the mother was mistaken that her parental rights had been restored.

It is fundamental that the reversal of an order upon appellate review restores the party who prevailed on appeal to the position that he or she enjoyed prior to entry of the order appealed from … . Contrary to Family Court’s statements, this Court’s October 2013 order did reinstate the mother’s parental rights and restored her to the position that she was in prior to the erroneous termination of her parental rights. It appears from the record that, at such time, the mother had been afforded supervised visitation with the children once a week. Accordingly, upon the reinstatement of her parental rights, the mother was, at a minimum, entitled to the restoration of the visitation that she was afforded prior to the termination, unless it could be demonstrated by respondent that there were “‘compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child[ren]’s welfare'” … . Matter of Angela F. v St. Lawrence County Dept. of Social Servs., 2017 NY Slip Op 00513, 3rd Dept 1-26-17

See also the related case: Matter of Angela F. v Gail WW., 2017 NY Slip Op 00514, 3rd Dept 1-25-17

 

FAMILY LAW (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)/JUDGES (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)/APPEALS (FAMILY COURT’S REFUSAL TO ACKNOWLEDGE THE THIRD DEPARTMENT’S REVERSAL OF THE TERMINATION OF MOTHER’S PARENTAL RIGHTS REQUIRED NEW HEARING IN FRONT OF A DIFFERENT JUDGE)

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PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING.

The First Department, reversing Family Court, determined Family Court should have informed pro se petitioner of his right to counsel in this order of protection proceeding:

Family Court committed reversible error when, during a brief hearing in this article 8 proceeding, it failed to advise the pro se petitioner that he had a right to the assistance of counsel of his own choosing, a right to an adjournment to confer with counsel, and a right to have counsel assigned if he was financially unable to obtain representation (Family Ct Act § 262[a][ii]…). Moreover, Family Court did not possess sufficient relevant information to allow it to make an informed determination as to whether the parties are or have been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e) … . Further evidence is needed regarding the frequency of petitioner and respondent’s interactions … . Matter of Gustavo D. v Michael D., 2017 NY Slip Op 00246, 1st Dept 1-12-17

FAMILY LAW (PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ATTORNEYS (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)/ORDER OF PROTECTION (FAMILY LAW, PRO SE PETITIONER SHOULD HAVE BEEN INFORMED OF HIS RIGHT TO COUNSEL IN THIS ORDER OF PROTECTION PROCEEDING)

MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined mother’s motion to relocate with the children should not have been granted. Father argued relocation would limit his involvement with the children to only weekends:

Here, the Supreme Court’s determination that the plaintiff could relocate with the children was not supported by a sound and substantial basis in the record … , as the plaintiff did not establish by a preponderance of the evidence that the proposed relocation would serve the children’s best interests … . The plaintiff’s evidence that relocating would enhance her life and the children’s lives economically was tenuous at best … , and the court’s finding that the plaintiff could become self-supporting and contribute to the children financially if she relocated was thus speculative and not supported by a sound and substantial basis in the record … . Moreover, the relocation would negatively impact the quantity and quality of the children’s future contact with the defendant, which weighs against granting relocation in this case … . The defendant presented evidence of his involvement in the children’s daily lives, school, and extracurricular activities. If the plaintiff was permitted to relocate with the children to East Hampton, the defendant would no longer be able to see the children midweek or remain involved in their many activities … . Finally, the plaintiff did not establish by a preponderance of the evidence that her proposed relocation would enhance the children’s lives emotionally or educationally … . DeFilippis v DeFilippis, 2017 NY Slip Op 00147, 2nd Dept 1-11-17

FAMILY LAW (MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED)/RELOCATE (FAMILY LAW, MOTHER’S MOTION TO RELOCATE WITH THE CHILDREN SHOULD NOT HAVE BEEN GRANTED)

COURT SHOULD NOT HAVE GIVEN HUSBAND CREDIT FOR HIGHER CHILD SUPPORT PAYMENTS MADE BEFORE THE LOWER FINAL CHILD SUPPORT AWARD UPON DIVORCE.

The Third Department, in this divorce action, determined that Supreme Court’s attempt to give the husband credit for the difference between the higher child support payments imposed prior to the divorce and the lower payments ordered in the final child support award was error:

… [T]he temporary support payments already made by the husband pursuant to the pendente lite order exceeded the retroactive support obligation set forth by Supreme Court. Absent any statutory authority for recoupment of overpayments of child support and given the “‘strong public policy against restitution or recoupment of [such] overpayments'” … , we conclude that Supreme Court erred in crediting the husband for the temporary child support payments that he made in excess of what he was required to pay under the final child support award … . Sprole v Sprole, 2016 NY Slip Op 08911, 3rd Dept 12-29-16

FAMILY LAW (CHILD SUPPORT, COURT SHOULD NOT HAVE GIVEN HUSBAND CREDIT FOR HIGHER CHILD SUPPORT PAYMENTS MADE BEFORE THE LOWER FINAL CHILD SUPPORT AWARD UPON DIVORCE)/CHILD SUPPORT (CHILD SUPPORT, COURT SHOULD NOT HAVE GIVEN HUSBAND CREDIT FOR HIGHER CHILD SUPPORT PAYMENTS MADE BEFORE THE LOWER FINAL CHILD SUPPORT AWARD UPON DIVORCE)

MOTHER’S PETITION TO MODIFY VISITATION WITH HER DAUGHTER SHOULD HAVE BEEN GRANTED, MOTHER WAS SUCCESSFULLY CONTROLLING HER ADDICTION AND WAS MAINTAINING A FULL TIME JOB.

The Third Department, reversing Family Court, determined mother had sufficiently demonstrated a change in circumstances to warrant unsupervised visitation with her child. Mother was successfully controlling her addiction and was maintaining a full-time job:

“As the party seeking to modify a prior order of visitation, the [mother] bore the initial burden of showing that a change in circumstances has occurred since the entry thereof that is sufficient to warrant Family Court undertaking a best interests analysis in the first instance; assuming that requirement is met, the [mother] then must show that modification of the prior order is necessary in order to ensure the child’s continued best interests” … . In this regard, “expanded visitation is generally favorable absent proof that such visitation is inimical to the child[‘s] welfare” … .

The mother’s modification request stemmed from certain changes that had occurred in both her personal life and the child’s schedule since entry of the prior order. With respect to the child’s schedule, the mother explained that, now that the child was enrolled in school, there was a narrow window of opportunity during the school week (60 to 90 minutes each day) when she could enjoy visitations with her daughter. As to her personal life, the mother testified — without contradiction — that she had completed a detox program, was actively engaged in both group therapy and a community-based support group (Alcoholics Anonymous), the latter of which she attended three or four times each week, had obtained a sponsor (with whom she spoke daily and tried to meet in person twice a month), was participating in a Suboxone treatment program (for which she underwent regular testing to monitor the level of Suboxone in her system), was subject to regular drug testing for illegal substances (all of which came back negative), was successfully maintaining a full-time job and, as of the date of the hearing, had been “clean” for more than one year … . Matter of Beeken v Fredenburg, 2016 NY Slip Op 08919, 3rd Dept 12-29-16

 

FAMILY LAW (MOTHER’S PETITION TO MODIFY VISITATION WITH HER DAUGHTER SHOULD HAVE BEEN GRANTED, MOTHER WAS SUCCESSFULLY CONTROLLING HER ADDICTION AND WAS MAINTAINING A FULL TIME JOB)/VISITATION (FAMILY LAW, MOTHER’S PETITION TO MODIFY VISITATION WITH HER DAUGHTER SHOULD HAVE BEEN GRANTED, MOTHER WAS SUCCESSFULLY CONTROLLING HER ADDICTION AND WAS MAINTAINING A FULL TIME JOB)

FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY.

The Fourth Department, reversing Family Court and ordering further proceedings before a different judge, reiterated that a court should consider paternity by estoppel before ordering a test for biological parternity. Here, Gerald, the acknowledged father of the child and the custodial parent of the child, was not a named party in the proceedings (a paternity petition brought by the mother naming another party, Shane, as the father). Shane appeared and stated he wanted nothing to do with child. Yet the court ordered a paternity test without making Gerald a party and without notifying him:

“Family Court should consider paternity by estoppel before it decides whether to test for biological paternity” … . That did not occur here because Gerald was not a named party in the paternity proceeding and did not otherwise appear when the court ordered Shane to submit to a genetic marker test, so he did not have the opportunity to raise the doctrine of estoppel. The court should have joined Gerald in that proceeding or otherwise notified him before it ordered the test … . After all, Gerald was not only the acknowledged father of the child, but was the custodial parent of the child, and the court was well aware of those facts inasmuch as it had issued the custody orders. The court made it clear in its decision, however, that even if Gerald had made a timely objection and raised the defense earlier, the court nevertheless would have ordered the test because the child was young and “the truth is important.” That is contrary to both the plain language of the statute and statements of law by the Court of Appeals. Matter of Jennifer L. v Gerald S., 2016 NY Slip Op 08730, 4th Dept 12-23-16

FAMILY LAW (FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY)/PATERNITY (FAMILY COURT SHOULD HAVE CONSIDERED PATERNITY BY ESTOPPEL BEFORE ORDERING TEST FOR BIOLOGICAL PATERNITY)

COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY.

The Fourth Department determined a house purchased by the husband prior to marriage was his separate property, despite the fact it was used a the marital residence and proceeds from the sale were used to purchase a marital residence. The appreciation in the value of the house, however, was marital property:

It was undisputed that the Seneca Hill Property was purchased by defendant prior to the marriage, and we conclude that it was not transmuted into marital property when the parties used it as the marital residence for approximately two years, or by virtue of defendant having used some of the sale proceeds therefrom to assist in funding the purchase of a new marital residence … . Defendant was therefore entitled to a credit for his separate property contributions to the marital estate … . We further conclude, however, that the appreciated value of the Seneca Hill Property that the court determined to be attributable to the contributions of plaintiff should have been classified as marital property … . Hart v Hart, 2016 NY Slip Op 08692, 4th Dept 12-23-16

FAMILY LAW (MARITAL PROPERTY, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/EQUITABLE DISTRIBUTION (MARITAL PROPERTY, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/MARITAL PROPERTY (COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/SEPARATE PROPERTY (EQUITABLE DISTRIBUTION, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)/APPRECIATION IN VALUE (EQUITABLE DISTRIBUTION, COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY)

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