You are here: / Family Law

GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY.

The Second Department determined Family Court erred by ordering genetic marker testing before resolving the issue of equitable estoppel:

Family Court Act § 532 provides that, in a proceeding to establish paternity, “on the court’s own motion or the motion of any party, [the court] shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests” (Family Ct Act § 532[a]…). However, “[n]o paternity test shall be ordered upon a written finding by the court that it is not in the best interests of the child on the basis of, inter alia, equitable estoppel” … . “Where a party to a paternity proceeding raises an issue of equitable estoppel, that issue must be resolved before any biological testing is ordered” … . Matter of Tralisa R. v Max S., 2016 NY Slip Op 08236, 2nd Dept 12-7-16

FAMILY LAW (GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)/PATERNITY (GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)/GENETIC MARKER TESTING (PATERNITY, GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)/EQUITABLE ESTOPPEL (PATERNITY, GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY)

ALTHOUGH THE DEBT WAS INCURRED DURING MARRIAGE, WIFE WAS NOT RESPONSIBLE FOR THE PORTION OF THE DEBT USED SOLELY TO FURTHER HUSBAND’S BUSINESS.

The Second Department determined Supreme Court properly allocated payment of a home equity line of credit (HELOC) incurred during marriage, taking into account a portion of the debt was used solely to further defendant-husband’s business:

The Supreme Court providently exercised its discretion in directing the defendant to pay two-thirds of the balance of a home equity line of credit (hereinafter the HELOC) or $198,667, and that the plaintiff was to be responsible for one-third of the balance of the HELOC or $99,330. In general, “[e]xpenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties” … . However, a financial obligation incurred by one party in pursuit of his or her separate interests should remain that party’s separate liability … . Under the circumstances of this case, inasmuch as the evidence established that the HELOC debt was incurred for the dual purpose of improving the marital residence and paying bills as well as funding the defendant’s separate business interest in which the plaintiff had no share, the defendant failed to show that the HELOC debt as to the defendant’s separate business interest should be shared equally. Horn v Horn, 2016 NY Slip Op 08198, 2nd Dept 12-7-16

FAMILY LAW (ALTHOUGH THE DEBT WAS INCURRED DURING MARRIAGE, WIFE WAS NOT RESPONSIBLE FOR THE PORTION OF THE DEBT USED SOLELY TO FURTHER HUSBAND’S BUSINESS)/MARITAL PROPERTY (ALTHOUGH THE DEBT WAS INCURRED DURING MARRIAGE, WIFE WAS NOT RESPONSIBLE FOR THE PORTION OF THE DEBT USED SOLELY TO FURTHER HUSBAND’S BUSINESS)

,

THE FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE.

The First Department, over a two-justice dissent, determined the administrative law judge’s (ALJ’s) finding that petitioner’s (mother’s) child was in imminent danger of harm was not supported by the evidence. Petitioner was caught shoplifting (wearing clothes under her clothes). At the time her five-year-old son was with her, and he too was wearing clothes under his clothes. The shoplifting charges were reduced to a violation and the record was sealed. Petitioner had no other contact with the criminal justice system. The child was deemed well cared for and happy. The issue was whether the petitioner’s name should be maintained on a list (“indicated” child abuse) which will make it difficult for her to continue her career in child care:

Under New York’s child protective scheme, a report of suspected child abuse or neglect will be marked “indicated” if the local agency determines after investigation that there is “some credible evidence of the alleged abuse or maltreatment” (Social Services Law § 412[7]). All childcare agencies and other agencies licensed by the state to provide certain services to children are required to inquire whether applicants for employment or to become foster or adoptive parents are subjects of indicated reports (Social Services Law § 424-a). An agency may choose to hire or approve persons on the list of those with indicated reports, but if it does, the agency must “maintain a written record, as part of the application file or employment record, of the specific reasons why such person was determined to be appropriate” for approval (Social Services Law § 424-a[2][a]). The names of subjects of indicated reports remain on the list until 10 years after the youngest child referred to in the report turns 18, unless earlier expunged (Social Services Law § 422[6]). * * *

… [T]he ALJ’s determination that petitioner’s actions were reasonably related to a position in childcare, the field of study petitioner is pursuing, was not rational. The legal standards for determining whether a child is maltreated … are repeated in the Guidelines. The ALJ failed to set forth his consideration of the relevant Guidelines for making such a determination, many of which, as the motion court pointed out, weighed in petitioner’s favor, including factors 2 (the seriousness and extent of any injury to child), 3 (harmful effect on the child of the subject’s actions or inactions), 5 (time since most recent incident of maltreatment), 6 (number of indicated incidents of abuse or maltreatment), 8(a) (whether the acts have been repeated), and 10 (whether reported behavior involved serious injury to, or death of, a child). The single factor the ALJ discussed, factor 8(b), “any information produced . . . in regard to . . . rehabilitation,” failed to consider that all of the evidence at the hearing indicated that petitioner has never been convicted of any crime…; no further [shoplifting] incidents had occurred; petitioner had no prior history with ACS (NYC Administration for Children’s Services); all of her family members interviewed expressed surprise at her behavior on the occasion leading to the report; and she told the caseworker she had “learned her lesson.” Matter of Natasha W. v New York State Off. of Children & Family Servs., 2016 NY Slip Op 08099, 1st Dept 12-1-16

FAMILY LAW (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/SOCIAL SERVICES LAW (CHILD ABUSE, FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD ABUSE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)/CHILD CARE (FINDING THAT PETITIONER’S CHILD WAS IN IMMINENT DANGER OF ABUSE, BASED SOLELY UPON A SHOPLIFTING INCIDENT, WAS NOT SUPPORTED BY THE EVIDENCE, PETITIONER’S NAME SHOULD NOT BE ON A LIST WHICH WILL MAKE IT DIFFICULT TO CONTINUE HER CAREER IN CHILD CARE)

,

UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY.

The Third Department determined Supreme Court did not abuse its discretion when it did not award prejudgment interest on a distributive award the wife had failed to pay. The matter came before Supreme Court when the husband moved to enforce the separation agreement:

“There is no automatic entitlement to prejudgment interest, under CPLR 5001, in matrimonial litigation” … . Rather, the decision to award prejudgment interest in a matrimonial action, as well as the rate and date from which it shall be computed, are matters within the sound discretion of the trial court … . Here, the record reflects that, following the execution of the separation agreement, issues arose regarding the accuracy of certain deeds and transfer documents prepared by the husband relative to the parcels of real property that were to be conveyed pursuant to the agreement. Such issues had not been resolved at the time of the husband’s motion to enforce the agreement, the wife claiming that certain inaccuracies still remained within the relevant documents. Although the wife’s obligation to tender the distributive award by the date prescribed in the separation agreement was not contingent upon the execution of the deeds transferring the real property, the wife explained that she had been advised by her attorney to withhold payment of the distributive award — which she had placed in a separate interest-bearing bank account — until the deeds were finalized and signed so as to ensure a contemporaneous exchange … . Under these circumstances, we cannot conclude that Supreme Court improvidently exercised its discretion in choosing to award the husband all interest actually earned on the distributive award rather than prejudgment interest pursuant to CPLR 5001. Fori v Fori, 2016 NY Slip Op 08135, 3rd Dept 12-1-16

FAMILY LAW (UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY)/CIVIL PROCEDURE (FAMILY LAW, PREJUDGMENT INTEREST, UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY)/INTEREST (FAMILY LAW, PREJUDGMENT INTEREST, UNDER THE FACTS, NO ABUSE OF DISCRETION IN FAILING TO AWARD PREJUDGMENT INTEREST ON A DISTRIBUTIVE AWARD THE WIFE FAILED TO PAY)

CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL. 

The First Department, reversing Family Court, determined mother, not father, should be awarded sole legal custody of the child:

The Family Court Judge presiding over the trial of this complex and long-running custody matter was clearly concerned with the child’s best interests and wrestled with concerns about the mother’s history of mental health issues, and the effect on the child of a “temporary” award of custody to the father, issued years prior to assignment of the case to the trial judge. However, a thorough review of the record does not provide a sound and substantial basis for the award of custody to the father, and requires an award of custody to the mother. * * *

In its award of custody to the father, the Family Court erred in several respects. First, it gave substantial weight to the fact that the father had temporary custody of the child for four years and nine months. This fact should not have been a basis, without more, for a final custody award. * * *

Secondly, the Family Court gave excessive weight to the parties’ financial circumstances, noting that their finances favored the father because the father works, and the mother is unemployed and receives Supplemental Security Income (SSI). * * *

Third, there is no support for the Family Court’s finding that the neutral forensic evaluator “made an initial superficial assessment of the parties at the commencement of his evaluative process, cast his lot with [the mother], and worked from that point to present his findings in her favor.” * * *

Fourth, Family Court’s concern about the mother’s mental health history is understandable, but its conclusions disregard crucial evidence and its determination is not in the child’s best interests. In March 2015, when the trial was completed, the mother was in remission, had not been hospitalized since November 2010, and, in the five years since then, had been compliant with treatment by her psychiatrist and therapist. * * *

Fifth, [the child’s]  close relationship to her siblings, all of whom reside with her mother, also weighs in favor of awarding custody to the mother, since “the stability and companionship to be gained from keeping the children together is an important factor for the court to consider” in making a custody determination …, because “[y]oung brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful” … . …

Finally, Family Court improperly considered this a relocation case, governed by Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]). However, since there has been no prior custody order, Tropea does not govern, and relocation should have been considered as one factor in determining the child’s best interests … . Matter of Michael B. (Lillian B.), 2016 NY Slip Op 08101, 1st Dept 12-1-16

 

FAMILY LAW (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)/CUSTODY (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)

,

INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY.

The Third Department determined the inadvertent recording of a conversation between mother and child in this custody proceeding should not have been admitted in evidence. Although mother testified the recording capture her and the child’s voices, she did not testify the recording had not been altered:

“The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered. Absent such proof, the [witness’s] concession that the voice on the tapes is his or hers and that he or she recalls making some of the statements on the tapes does not exclude the possibility of alteration and, therefore, does not sufficiently establish authenticity to make the tapes admissible” … . The foundation laid for the introduction of the recording into evidence was the mother’s testimony that the telephone call was made by the child using the mother’s cell phone, the voices on the recording were hers and the child’s, she listened to the recording “[q]uite a few” times and her friend, Amanda Coon, was present when the recording was made. After this testimony, Family Court admitted the recording into evidence. The mother’s testimony was insufficient to authenticate the recording because she did not testify as to whether or not the recording was the complete and unaltered conversation between her and the child, and “there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody” … . Matter of Williams v Rolf, 2016 NY Slip Op 07884, 3rd Dept 11-23-16

FAMILY LAW (INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/EVIDENCE (FAMILY LAW, CUSTODY, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/CUSTODY (EVIDENCE, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)/RECORDINGS (FAMILY LAW, CUSTODY, INADVERTENT RECORDING OF A CONVERSATION BETWEEN MOTHER AND CHILD SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, NO TESTIMONY THE RECORDING WAS NOT ALTERED AND NO EVIDENCE OF CHAIN OF CUSTODY)

DERIVATIVE NEGLECT FINDING REVERSED.

The Third Department, reversing Family Court, determined the derivative neglect was not supported by the evidence:

Here, the proof relied upon by petitioner to support its claim of derivative neglect — namely, 1999 and 2010 indicated hotline reports involving different children — was insufficient to support a finding of derivative neglect. Neither the 1999 report nor the 2010 report resulted in a finding of neglect against respondent … . Moreover, the conduct that formed the basis for each of the indicated reports failed to demonstrate that respondent’s understanding of the responsibilities accompanying parenthood were fundamentally flawed at the time of this proceeding … . In addition to its remoteness, the 1999 report was made against the biological parents of the child who was the subject of the report, as well as respondent, who was temporarily residing with the biological parents of the child at the age of 18, and did not conclusively establish which of the three adults had engaged in the conduct giving rise to the indicated findings. The 2010 report was indicated against respondent and his then-paramour for inadequate guardianship based on the children witnessing domestic violence, conduct that may not necessarily form the basis for a neglect finding … . Accordingly, inasmuch as petitioner failed to satisfy its burden of proof, Family Court’s finding of neglect cannot stand. Matter of Choice I. (Warren I.), 2016 NY Slip Op 07899, 3rd Dept 11-23-16

FAMILY LAW (DERIVATIVE NEGLECT FINDING REVERSED)/NEGLECT (DERIVATIVE NEGLECT FINDING REVERSED

FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING.

The Third Department, in rejecting father’s request for a transcript of a Lincoln hearing (in a custody matter), explained why children’s testimony in a Lincoln hearing must be kept confidential:

A child’s testimony in a Lincoln hearing in a proceeding pursuant to Family Ct Act article 6 is not akin to the testimony that may be taken from a child in proceedings pursuant to Family Ct Act article 10. In an article 10 proceeding, an adversarial relationship may exist between the child and the accused parent. As the child’s testimony may be the sole basis for a finding of abuse or neglect, the parent’s due process rights are implicated. Although there are circumstances in which a child’s testimony in such a proceeding may be obtained in camera or outside the presence of the respondent parent, this must be carefully balanced with the rights of the accused parent … .

By clear contrast, in a Family Ct Act article 6 proceeding, in which a Lincoln hearing may be conducted, such a hearing serves entirely different, nonadversarial purposes, and a parent’s constitutional rights are not implicated. The purpose of a Lincoln hearing is not primarily evidentiary; it is instead to assist the court in making the determination of what serves the best interests of the child. The Lincoln hearing is allowed as a manner of directly ascertaining the child’s wishes and may also serve to corroborate information that has been adduced on the record during the course of the fact-finding hearing … .

“[T]he right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents” … . Matter of Heasley v Morse, 2016 NY Slip Op 07883, 3rd Dept 11-23-16

 

FAMILY LAW (CUSTODY, FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING)CUSTODY (LINCOLN HEARING, FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING)/LINCOLN HEARING (CUSTODY,  FATHER DOES NOT HAVE A RIGHT TO A TRANSCRIPT OF LINCOLN HEARING)

QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE.

The Second Department determined summary judgment should not have been granted enforcing the parties’ separation agreement. Defendant had raised a question of fact about whether the agreement was unconscionable:

Under the terms of the separation agreement, the defendant relinquished all of the property rights that he acquired during the marriage, including any interest that he may have had in the plaintiff’s partnership interest in a neurological practice and the parties’ four properties in Florida, as well as any spousal maintenance. Given the vast disparity in the parties’ earnings, the evidence that the defendant had no assets of value, and the defendant’s documented medical condition which inhibits his future earning capacity, the defendant’s submissions were sufficient to create an inference that the separation agreement was unconscionable … . In addition, the defendant’s evidence indicating that the plaintiff sold almost $1 million in securities in the months preceding his execution of the separation agreement, the value of which were not accounted for in the list of her bank and brokerage accounts therein, raises a triable issue of fact as to whether the plaintiff concealed assets … . Under these circumstances, the Supreme Court should have exercised its equitable powers and directed further financial disclosure, to be followed by a hearing to test the validity of the separation agreement … . Gardella v Remizov, 2016 NY Slip Op 07924, 2nd Dept 11-23-16

FAMILY LAW (QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE)/SEPARATION AGREEMENT (QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE)/UNCONSCIONABILITY (FAMILY LAW, QUESTION OF FACT RAISED ABOUT WHETHER A SEPARATION AGREEMENT WAS UNCONSCIONABLE)

,

FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER.

The Fourth Department determined the Family Court judge should have recused herself from a dispositional hearing in a permanent neglect proceeding. Father had made a death threat against the judge following the finding of permanent neglect:

It is well settled that, “[a]bsent a legal disqualification under Judiciary Law § 14, a . . . Judge is the sole arbiter of recusal” … , and the decision whether to recuse is committed to his or her discretion … . Under these circumstances, and particularly in view of the order of protection, we conclude that the court abused its discretion in refusing to recuse itself … . Matter of Trinity E. (Robert E.), 2016 NY Slip Op 07804, 4th Dept 11-18-16

FAMILY LAW (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/JUDGES (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)/RECUSAL (FAMILY COURT JUDGE SHOULD HAVE RECUSED HERSELF AFTER DEATH THREAT BY FATHER)

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