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WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY.

The Second Department determined plaintiff wife was entitled to a share of husband’s separate property that was commingled with marital funds, as well as a share of the appreciation of husband’s separate property. Husband, a firefighter, received an award from the September 11th Victim Compensation Fund, which was placed in a joint checking account and then used to buy investment property:

… [S]eparate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds … . “That presumption, however, may be overcome by clear and convincing evidence, either direct or circumstantial, that the account was created only as a matter of convenience” … . The presumption may also be overcome by evidence that the account, although joint, is managed solely by one party … , or that the funds were deposited into the joint account only briefly … . In this case, the Supreme Court correctly determined that by depositing the proceeds of the award into the parties’ joint account, the defendant’s separate property lost its character of separateness and a presumption arose that each party was entitled to a share of the funds, which was not rebutted. …

The record supports the Supreme Court’s determination that the direct and indirect contributions of the plaintiff, as the nontitled spouse, contributed to the appreciation in the value of the defendant’s separate properties. Therefore, the plaintiff was entitled to a share of that appreciation … . Brown v Brown, 2017 NY Slip Op 01175, 2nd Dept 2-15-17

 

FAMILY LAW (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/SEPARATE PROPERTY (FAMILY LAW, (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/MARITAL PROPERTY (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)

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EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined the statutory scheme for a potential child-neglect case referred to the Family Assessment Response Track (FAR track) does not provide a mechanism for expungement. Here a potential educational neglect case was referred to the FAR track and ultimately no action was taken by the caseworker and the case was closed. The petitioners requested expungement:

Petitioners contend that the right to seek early expungement may be inferred from the silence of Social Services Law § 427-a on this topic. We disagree. Principles of statutory construction teach that “the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended” … . Moreover, this is not a case in which the two statutes that petitioners seek to interpret in identical fashion “relate to the same subject matter, contain identical language and were adopted together” … . Rather, the FAR track was created as a new and entirely separate means of addressing certain allegations of child abuse in a program geared toward the provision of social services, rather than an investigation assessing blame. In other words, the subject matter of the FAR track cannot be deemed identical to that of a traditional child abuse investigation. Matter of Corrigan v New York State Off. of Children & Family Servs., 2017 NY Slip Op 01020, CtApp 2-9-17

FAMILY LAW (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/CHILD ABUSE (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/CHILD NEGLECT (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/EDUCATIONAL NEGLECT (EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/EXPUNGEMENT (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/SOCIAL SERVICES LAW  (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))/FAMILY ASSESSMENT RESPONSE TRACT (FAR TRACK) (EDUCATIONAL NEGLECT, EXPUNGEMENT NOT AVAILABLE FOR CHILD NEGLECT CASE REFERRED TO THE FAMILY ASSESSMENT RESPONSE TRACK (FAR TRACK))

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MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED.

The Second Department determined Family Court should have granted the child’s motion for findings to allow him to petition for special immigrant juvenile status:

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interests to be returned to his or her previous country of nationality or country of last habitual residence … .

Based upon our independent factual review, we find that reunification of the child with one or both of his parents is not a viable option due to parental abandonment … , and that it would not be in his best interests to return to India … . Matter of Varinder S. v Satwinder S., 2017 NY Slip Op 00987, 2nd Dept 2-8-17

 

FAMILY LAW (MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)/IMMIGRATION LAW  (MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)/SPECIAL IMMIGRANT JUVENILE STATUS (MOTION FOR FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)

18% REDUCTION IN INCOME SUFFICIENT TO WARRANT RECALCULATION OF CHILD SUPPORT.

The Fourth Department, reversing Family Court, determined an 18% reduction in father’s income was sufficient to warrant a recalculation of his child support:

… [T]he father cites his significantly reduced income from 2012 to 2013 as the requisite change in circumstances. We agree with the father that such income reduction—approximately 18%—constitutes a sufficient change in circumstances to warrant a recalculation of his child support obligation … . Matter of Brink v Brink, 2017 NY Slip Op 00879, 4th Dept 2-3-17

FAMILY LAW (18% REDUCTION IN INCOME SUFFICIENT TO WARRANT RECALCULATION OF CHILD SUPPORT)/CHILD SUPPORT (18% REDUCTION IN INCOME SUFFICIENT TO WARRANT RECALCULATION OF CHILD SUPPORT)

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)

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