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EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED.

The Second Department, reversing Family Court, determined the out-of-court statements of the child (Tahjane) were sufficiently corroborated, and the proof of excessive corporal punishment and a history of violence against mother in the children’s presence supported a finding of neglect by father:

Contrary to the Family Court’s determination, the mother’s testimony and medical records provided sufficient corroboration to support the reliability of Tahjane’s out-of-court statements that the father choked her and, together with the petitioner’s progress notes, established the allegation, by a preponderance of the evidence, that the father inflicted excessive corporal punishment on Tahjane … . Further, the court should have drawn a negative inference from the father’s failure to testify … . Accordingly, the petitioner established, by a preponderance of the evidence, that the father neglected Tahjane by inflicting excessive corporal punishment on her.

The petitioner also established, by a preponderance of the evidence, that the father neglected all of the subject children by perpetrating acts of domestic violence against the mother in their presence. Although “exposing a child to domestic violence is not presumptively neglectful” … , a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually or imminently harmed by reason of the parent or caretaker’s failure to exercise a minimum degree of care … . Matter of Nah-Ki B. (Nakia B.), 2016 NY Slip Op 06492, 2nd Dept 10-5-16

FAMILY LAW (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/EVIDENCE (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/HEARSAY (FAMILY LAW, EVIDENCE, INCLUDING OUT OF COURT STATEMENTS BY A CHILD, OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)/NEGLECT (EVIDENCE OF EXCESSIVE CORPORAL PUNISHMENT AND VIOLENCE AGAINST MOTHER IN THE CHILDREN’S PRESENCE WARRANTED A NEGLECT FINDING, DISMISSAL OF PETITIONS REVERSED)

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COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE.

The Second Department, reversing a consent order, determined Family Court did not take the necessary steps to ensure father wished to waive his right to counsel in this custody/relocation proceeding. Father had indicated he wished to be represented by legal aid. Legal aid informed the court father did not qualify for their services. Father appeared pro se without any further inquiry by the court:

 

Although the order appealed from recites that it was entered on consent, under the particular facts and circumstances of this case, we are not precluded from reviewing whether the Family Court secured a valid waiver of the father’s right to counsel. The Family Court erred in allowing the father to proceed pro se. When the father expressed a desire to have an attorney appointed, the court should have inquired further into the father’s financial circumstances, including, but not limited to, inquiring about his expenses … . Moreover, the court did not determine whether the father was unequivocally, voluntarily, and intelligently waiving his right to counsel … . Despite the father’s statements at pretrial appearances that he would like to have an attorney appointed, the court presided over the hearing without inquiring into why the father was appearing pro se, or whether he understood the risks and disadvantages of doing so. Matter of Soto v Willis, 2016 NY Slip Op 06505, 2nd Dept 10-5-16

FAMILY LAW (COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/ATTORNEYS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CUSTODY, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)/APPEALS (FAMILY LAW, CONSENT ORDER, COURT FAILED TO ASCERTAIN WHETHER FATHER WAIVED HIS RIGHT TO COUNSEL, CONSENT ORDER REVIEWABLE IN THIS CIRCUMSTANCE)

FORCING DEFENDANT MOTHER TO GO TO TRIAL IN A CUSTODY SUIT WITHOUT AN ATTORNEY, AFTER HER ATTORNEY WITHDREW FOR NONPAYMENT ON THE MORNING OF THE TRIAL, REQUIRED REVERSAL.

The Fourth Department determined Supreme Court’s failure to grant an adjournment to allow mother to find another attorney, after her attorney withdrew on the morning of the custody trial, required reversal:

We conclude that the court abused its discretion in denying defendant’s request for an adjournment … . The record establishes that defendant’s request was not a delay tactic and did not result from her lack of diligence … . We also agree with defendant that the court’s refusal to grant defendant an adjournment to obtain new counsel resulted in the absence of a full and complete record upon which the court could render an adequate and informed decision. “The custody determination of the trial court generally is entitled to great deference . . . , but [s]uch deference is not warranted . . . where the custody determination lacks a sound and substantial basis in the record” … . Zhu v Ye Cheng, 2016 NY Slip Op 06358, 4th Dept 9-30-16

FAMILY LAW (FORCING DEFENDANT MOTHER TO GO TO TRIAL IN A CUSTODY SUIT WITHOUT AN ATTORNEY, AFTER HER ATTORNEY WITHDREW FOR NONPAYMENT ON THE MORNING OF THE TRIAL, REQUIRED REVERSAL)/ATTORNEYS (FAMILY LAW, FORCING DEFENDANT MOTHER TO GO TO TRIAL IN A CUSTODY SUIT WITHOUT AN ATTORNEY, AFTER HER ATTORNEY WITHDREW FOR NONPAYMENT ON THE MORNING OF THE TRIAL, REQUIRED REVERSAL)

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APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVE HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED.

The Second Department determined the appellant was deprived of her right to counsel. The orders of protection were reversed:

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, voluntarily, and intelligently … . In order to determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a “searching inquiry” to ensure that the waiver is knowing, voluntary, and intelligent … . A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal, without regard to the merits of the unrepresented party’s position … .

Here, the record supports the appellant’s contention that she was not advised of her right to counsel in accordance with Family Court Act § 262(a). Further, there is no indication on the record that she waived her right to counsel. Under these circumstances, the appellant was deprived of her statutory right to counsel .. . Matter of Osorio v Osorio, 2016 NY Slip Op 06219, 2nd Dept 9-28-16

FAMILY LAW (APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVER HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED)

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SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS.

In a proceeding related to Matter of Frank G… summarized above, the Second Department noted that the surrogacy contract did not deprive the mother of the child (Renee P.-F.) of her parental rights:

Renee P.-F.’s parental rights were not terminated by virtue of her entering into a surrogacy contract. Surrogate parenting contracts have been declared contrary to the public policy, and are void and unenforceable (see Domestic Relations Law § 122). Moreover, Domestic Relations Law § 124(1) expressly states that “the court shall not consider the birth mother’s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations.” Matter of Giavonna F. P.-G. (Frank G.–Renee P.-F.), 2016 NY Slip Op 05948, 2nd Dept 9-8-16

FAMILY LAW (SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/CONTRACT LAW (FAMILY LAW, SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/SURROGACY CONTRACT (FAMILY LAW, SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)/PARENTAL RIGHTS (SURROGACY CONTRACT DOES NOT DEPRIVE MOTHER OF HER PARENTAL RIGHTS)

PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP.

Applying the recent overruling of precedent by the Court of Appeals, the Second Department determined petitioner had the right to seek custody of children, despite the absence of a biological or adoptive relationship. The children had been carried by a surrogate, who also sought custody:

During the pendency of this appeal, the Court of Appeals, in Matter of Brooke S.B. v Elizabeth A. C.C. … , overruled Alison D. because, inter alia, its definition of “parent” had “become unworkable when applied to increasingly varied familial relationships” … . In Brooke S.B., the Court held that, where a partner to a biological parent “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70(a)” … .

Here, Joseph sufficiently demonstrated by clear and convincing evidence that he and Frank entered into a pre-conception agreement to conceive the children and to raise them together as their parents. Although the surrogacy contract is not enforceable as against Renee to deprive her of standing under Domestic Relations Law § 70 (see Domestic Relations Law § 124[1]), it is evidence of the parties’ unequivocal intention that Frank and Joseph become the parents of the children. Moreover, Frank and Joseph equally shared the rights and responsibilities of parenthood, and were equally regarded by the children as their parents. Therefore, Joseph established standing to seek custody or visitation under Domestic Relations Law § 70… . Matter of Frank G. v Renee P.-F., 2016 NY Slip Op 05946, 2nd Dept 9-8-16

 

FAMILY LAW (PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP)/CUSTODY (PETITIONER HAS THE RIGHT TO PETITION FOR CUSTODY DESPITE ABSENCE OF BIOLOGICAL OR ADOPTIVE RELATIONSHIP)

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CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS.

The Second Department determined, where father was ordered to procure life insurance to cover the children’s support and education costs, and where father died without complying with the order, a constructive trust on the proceeds of other life insurance policies was properly imposed in an amount sufficient to cover father’s support and education-expense obligations:

… [T]he Legislature has provided that a court may require a payor spouse to maintain life insurance to prevent that financial injury: “The court may also order a party to purchase, maintain or assign a policy of accident insurance or insurance on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage, or in the case of accident insurance, the insured spouse as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of the spouse’s duty to provide maintenance, child support or a distributive award” (Domestic Relations Law § 236[B][8][a]). The purpose of this provision is not to provide an alternative award of maintenance or child support, but solely to ensure that the spouse or children will receive the economic support for payments that would have been due had the payor spouse survived … . Accordingly, where life insurance is appropriate, it should be set in an amount sufficient to achieve that purpose … . It should not be in an amount that would provide a windfall … . Mayer v Mayer, 2016 NY Slip Op 05911, 2nd Dept 8-31-16

FAMILY LAW (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)/INSURANCE LAW (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)/CHILD SUPPORT (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)/TRUSTS AND ESTATES (CONSTRUCTIVE TRUST PROPERLY IMPOSED UPON THE PROCEEDS OF LIFE INSURANCE TO COVER CHILD SUPPORT AND EDUCATION COSTS)

PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, overruling a 25-year-old precedent, determined a partner in an unmarried couple who has no biological or adoptive relationship with a child can be the child's parent entitled to custody or visitation:

These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) — namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child's “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their “established relationship with the child” (77 NY2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a). We agree that, in light of more recently delineated legal principles, the definition of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70. * * *

Petitioners in the two cases before us have alleged that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. We hold that these allegations, if proven by clear and convincing evidence, are sufficient to establish standing. Because we necessarily decide these cases based on the facts presented to us, it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody. Matter of Brooke S.B. v Elizabeth A.C.C., 2016 NY Slip Op 05903, CtApp 8-30-16

FAMILY LAW (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)/CUSTODY (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)/VISITATION (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)/PARENT (PARTNER IN AN UNMARRIED COUPLE WITH NO BIOLOGICAL OR ADOPTIVE RELATIONSHIP WITH A CHILD HAS STANDING AS A PARENT TO SEEK CUSTODY/VISITATION)

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MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE.

The Second Department, in an extensive decision covering several marital/separate property and equitable distribution issues not summarized here, determined the maintenance portion of a 1988 postnuptial agreement was unconscionable and therefore unenforceable:

Here, the Supreme Court properly determined that the maintenance provision of the 1988 postnuptial agreement, which provided the plaintiff with only $50,000 in full satisfaction of all claims, would be unconscionable by the time a final judgment would be entered in this action. At the time that the parties executed the 1988 postnuptial agreement, the defendant owned, among other things, a jewelry business worth at least $3 million, and he was in contract to buy a shopping center. Thereafter, during more than 25 years of marriage, the defendant’s jewelry business underwent tremendous growth while the plaintiff worked there, and the parties lived what can easily be described as a lavish lifestyle. Among other things, they owned numerous high-end automobiles and took numerous international vacations. For a time, they traveled regularly to the Bahamas on the defendant’s yacht. Under all the circumstances, the court properly determined that the maintenance provision in the 1988 agreement was unconscionable and, thus, unenforceable … . Maddaloni v Maddaloni, 2016 NY Slip Op 05851, 2nd Dept 8-24-16

FAMILY LAW (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE)/CONTRACT LAW (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSIONABLE)/UNCONSCIONABLE CONTRACT (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE)

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COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT.

The Second Department determined the trial judge should have determined the value of the marital residence before awarding sole title to plaintiff:

We remit the matter for a new trial on the issue of equitable distribution of marital property. Although the parties came forward with a paucity of evidence regarding the value of the marital residence, the Supreme Court was nevertheless required to determine the value of the property before awarding sole title to the plaintiff. “A determination must be made as to the net value of each asset before determining the distribution thereof” … . In circumstances where proof of value is insufficient to make a determination, the court has discretion to, among other things, appoint a neutral appraiser and to direct that such appraiser be paid by one or both parties … . Further, the court erred in failing to value and equitably distribute the defendant’s investment in a rental property located in North Carolina and the parties’ remaining interest in property located in Costa Rica. Van Dood v Van Dood, 2016 NY Slip Op 05858, 2nd Dept 8-24-16

FAMILY LAW (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EVIDENCE (FAMILY LAW, COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/MARITAL PROPERTY (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EQUITABLE DISTRIBUTION (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)

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