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FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD.

The First Department, reversing Family Court, determined mother’s petition for a modification of custody should not have been dismissed without a hearing and without interviewing the 13-year-old child:

… [P]etitioner submitted evidence of the younger child’s preference, his growing apprehension about staying with respondent [father], and respondent’s maltreatment of the child. She submitted evidence that she was addressing the mental health concerns that had led to her initial consent to relinquish custody to respondent and evidence that she had sought treatment for issues relating to a history of domestic violence and that she had obtained new living quarters for herself and the younger child. The child supported the petition and asked for an in camera hearing … .

Without meeting with the child or considering the sworn allegations of domestic abuse (see Domestic Relations Law § 240[1]), the court granted the motion to dismiss. This was error.

Petitioner presented sufficient evidence to warrant a plenary hearing to determine whether the totality of the circumstances warrants a modification of the custody order, including its limited visitation provisions and the grant of complete decision-making authority to respondent, and whether such a change is in the best interests of the child … . The child’s wishes, to be discerned from an interview, should be considered in making the determination … . Matter of Athena H.M. v Samuel M., 2016 NY Slip Op 06865, 1st Dept 10-20-16

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)/CUSTODY (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)

FAMILY COURT IMPROPERLY DELEGATED ITS AUTHORITY TO STRUCTURE VISITATION.

The Third Department noted Family Court improperly delegated its authority to structure visitation and remitted the matter:

… [W]e find a sound and substantial basis in this record for Family Court’s decision to modify the prior visitation order by limiting the mother’s visitation to a counseling format — which the mother acknowledged was the best she could hope for given her strained relationship with the child … . That said, by effectively making further visitation contingent on the success of counseling and the father’s approval, Family Court improperly delegated its authority to structure a visitation schedule … . We conclude that the matter must be remitted to Family Court for a determination as to whether a resumption of visitation with the mother would be in the child’s best interests and, if so, under what conditions … . Matter of Christine TT. v Dino UU., 2016 NY Slip Op 06910, 3rd Dept 10-20-16

FAMILY LAW (FAMILY COURT IMPROPERLY DELEGATED ITS AUTHORITY TO STRUCTURE VISITATION)/VISITATION (FAMILY COURT IMPROPERLY DELEGATED ITS AUTHORITY TO STRUCTURE VISITATION)

FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS.

The Third Department, reversing Family Court, determined father (respondent) was denied due process when Family Court went ahead with proceedings to terminate his parental rights in his absence. Father was never informed that a final hearing or trial was scheduled:

A parent has a due process right to be present during proceedings to terminate parental rights, but that right “is not absolute and must be balanced with the child’s right to a prompt and permanent adjudication”… . “Absent unusual justifiable circumstances, a parent’s rights should not be terminated without his or her presence at the hearing” … . Under the circumstances here, a brief adjournment to allow participation by respondent would not have significantly impinged upon the child’s right to a prompt hearing … , especially since respondent may have been the only witness regarding his defense that he had attempted to contact the child … . Because the record does not provide any indication that either respondent or his counsel was aware that the August 4, 2015 proceeding was scheduled as a final hearing or trial on the petition, and because the record likewise provides no indication that either was aware of the stay expiring on September 25, 2015, we find that respondent was denied “some opportunity to participate in a meaningful way” … . Thus, respondent is entitled to a new hearing, with new counsel assigned to represent him. Matter of Chloe N. (Joshua N.), 2016 NY Slip Op 06926,  3rd Dept 10-20-16

FAMILY LAW (FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS)/PARENTAL RIGHTS, TERMINATION (FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS)

FAMILY COURT IMPROPERLY DELEGATED AUTHORITY TO DETERMINE VISITATION; CHILD’S ATTORNEY PROPERLY TOOK A POSITION ADVERSE TO THE CHILD’S WISHES.

The Third Department noted: (1) Family Court improperly delegated the authority to determine mother’s visitation to a counselor; and (2) under the circumstances, it was appropriate for the child’s attorney to take a position that did not reflect the child’s wishes:

Considering the evidence as a whole and particularly considering the psychologist’s work with all of the parties and her reasoned explanation of how numerous factors led her to conclude that there was “no credible evidence of abuse” by the father but that there was evidence of “coaching, coercion and brainwashing” of the child by the mother, we find no reason to depart from Family Court’s determination to credit the psychologist. * * *

Family Court erred by delegating the determination of the mother’s visitation to the child’s counselor. A court cannot delegate its authority to determine visitation to a mental health professional … . * * *

… [W]e find no fault in the attorney for the child’s decision to advocate for a position contrary to the child’s wishes, of which Family Court was aware, given that such wishes were “likely to result in a substantial risk of imminent, serious harm to [her]” … . Matter of Zakariah SS. v Tara TT., 2016 NY Slip Op 06923, 3rd Dept 10-20-16

 

FAMIILY LAW (FAMILY COURT IMPROPERLY DELEGATED AUTHORITY TO DETERMINE VISITATION; CHILD’S ATTORNEY PROPERLY TOOK A POSITION ADVERSE TO THE CHILD’S WISHES)/VISITATION (FAMILY COURT IMPROPERLY DELEGATED AUTHORITY TO DETERMINE VISITATION)/ATTORNEYS (FAMILY LAW, CHILD’S ATTORNEY PROPERLY TOOK A POSITION ADVERSE TO THE CHILD’S WISHES)

CONDITIONS OF FATHER’S VISITATION CANNOT BE DETERMINED BY A THERAPIST.

The Second Department determined Family Court improperly left the conditions for father’s visitation with his child up to a therapist:

… [I]t is for the Family Court—not the child’s therapist—to exercise its own discretion to determine how, when, and under what terms and conditions the father’s visitation with the subject child … is to resume … . Matter of Rogan v Guida, 2016 NY Slip Op 06716, 2nd Dept 10-12-16

FAMILY LAW (CONDITIONS OF FATHER’S VISITATION CANNOT BE DETERMINED BY A THERAPIST)/VISITATION (FAMILY LAW, CONDITIONS OF FATHER’S VISITATION CANNOT BE DETERMINED BY A THERAPIST)

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FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined Family Court should have granted mother’s objection to the support magistrate’s finding father did not willfully violate the support order. Proof that support payments were not made is prima facie proof of a willful violation requiring father to come forward with an explanation. Father offered no explanation:

Here, the father’s failure to satisfy his child support obligations constituted prima facie evidence of a willful violation … . This showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the support order was not willful … . The father failed to satisfy this burden. There was no evidence that the father was financially unable to meet his child support obligations. Accordingly, the Family Court should have granted the mother’s objection to so much of the Support Magistrate’s order as determined that the father did not willfully violate the support order. Since the father’s violation of the support order was willful, the court was required to award an attorney’s fee to the mother … . Matter of Torres v Moran, 2016 NY Slip Op 06506, 2nd Dept 10-5-16

FAMILY LAW (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/EVIDENCE (FAMILY LAW, FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)/CHILD SUPPORT (FAILURE TO PAY SUPPORT IS PRIMA FACIE EVIDENCE OF A WILLFUL VIOLATION OF A SUPPORT ORDER, FAMILY COURT REVERSED)

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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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