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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)

CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED.

The Second Department, reversing Supreme Court, determined the child support provisions of a stipulation of settlement (divorce) should have been vacated because the provisions did not comply with the Child Support Standards Act (CSSA):

Domestic Relations Law § 240(1-b)(h) requires a stipulation of settlement providing for a parent’s obligation to pay basic child support to contain recitals that the parties were advised of the CSSA and “that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded.” In the event that the stipulation of settlement deviates from the basic child support obligation provided for in the CSSA, the stipulation must also “specify the amount that such basic child support obligation would have been and the reason or reasons that such agreement or stipulation does not provide for payment of that amount” (Domestic Relations Law § 240[1-b][h]). Child support provisions in stipulations or agreements that do not contain these recitals are invalid and unenforceable … .

Here, the child support provision in the parties’ stipulation of settlement did not include a calculation of basic child support pursuant to the CSSA or a recital that such calculation would result in the presumptively correct amount of child support … . In addition, that provision makes no distinction between the defendant’s obligation to pay basic child support and his obligation to pay other support for the child not required by statute, such as the child’s college tuition and other expenses incurred by the child after his 21st birthday. Young v Young, 2016 NY Slip Op 05809, 2nd Dept 8-17-16

 

FAMILY LAW (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED)/CHILD SUPPORT STANDARDS ACT (CHILD SUPPORT PROVISIONS OF A STIPULATION OF SETTLEMENT DID NOT COMPLY WITH THE CHILD SUPPORT STANDARDS ACT, PROVISIONS SHOULD HAVE BEEN VACATED)

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ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department determined mother’s custody petition should not have dismissed. Although mother was presumptively entitled to custody as the sole surviving parent, she was seeking findngs which would allow the children to apply for special immigrant juvenile status (SIJS):

SIJS is a form of immigration relief that affords undocumented children a pathway to lawful permanent residency and citizenship … . 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, is unmarried, and has been legally committed to, or placed under the custody of, 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 native country or country of last habitual residence … . “Only once a state juvenile court has issued this factual predicate order may the child, or someone acting on his or her behalf, petition the United States Citizenship and Immigration Services [hereinafter USCIS] for SIJS” … . Ultimately, the determination of whether to grant SIJS to a particular juvenile rests with USCIS and its parent agency, the Department of Homeland Security. Thus, when making the requisite SIJS findings, the state or juvenile court is not actually “rendering an immigration determination” … . * * *

Here, although the mother was presumptively entitled to custody of the children as their surviving parent … , “[a] natural parent has standing to seek legal custody of his or her child” … , and “[u]nopposed petitions for custody brought by a natural parent have been granted” for SIJS purposes … .

Accordingly, the Family Court should not have dismissed the custody petition without conducting a hearing and considering the children’s best interests. Instead, the court should have proceeded to conduct a hearing on the petition, which sought a custody order as well as an order making the requisite declaration and special findings so as to enable the children to petition for SIJS … . Matter of Castellanos v Recarte, 2016 NY Slip Op 05755, 2nd Dept 8-10-16

 

FAMILY LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (ALTHOUGH MOTHER WAS ENTITLED TO CUSTODY AS SOLE SURVIVING PARENT, HER PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED WITHOUT FINDINGS WHICH WOULD ENTITLE HER CHILDREN TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH CHILDREN SHOULD HAVE BEEN AWARDED TO FATHER IN THIS MODIFICATION PROCEEDING.

The Second Department determined Family Court properly awarded custody of Jonathan to father, finding modification of custody was justified by changed circumstances. However Family Court erred in failing to award father custody of Jonathan’s sibling, Madison. It was deemed to be in Madison’s best interests to continue living with Jonathan:

… [T]he Supreme Court’s determination that the evidence did not demonstrate a sufficient change in circumstances warranting modification of the custody provisions of the settlement agreement so as to award the father residential custody of the parties’ child Madison is not supported by a sound and substantial basis in the record. It “has long [been] recognized that it is often in the child’s best interests to continue to live with his [or her] siblings” … , and “the courts will not disrupt sibling relationships unless there is an overwhelming need to do so” … . It is undisputed that Jonathan and Madison have a close relationship, and, based upon the recommendations of the children’s therapist that they should not be separated, the position of the attorney for the children that they should remain with the same custodial parent, and evidence that the father demonstrated more of an ability and willingness to assure meaningful contact between the children and the mother, and to foster a healthier relationship between the children and the mother, than the mother would have fostered between the children and the father, the court should have awarded residential custody of Madison to the father … . Cook v Cook, 2016 NY Slip Op 05743, 2nd Dept 8-10-16

FAMILY LAW IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH CHILDREN SHOULD HAVE BEEN AWARDED TO FATHER IN THIS MODFICATION PROCEEDING/CUSTODY IT WAS IN THE BEST INTERESTS OF SIBLINGS TO REMAIN TOGETHER, CUSTODY OF BOTH CHILDREN SHOULD HAVE BEEN AWARDED TO FATHER IN THIS MODFICATION PROCEEDING)

PRELIMINARY CONFERENCE (PC) ORDER SETTING TEMPORARY MAINTENANCE WHICH DEVIATED FROM THE PRESUMPTIVE AMOUNT INVALID; UPWARD MODIFICATION PROPER.

The First Department, in a full-fledged opinion by Justice Acosta, affirming Supreme Court, determined a preliminary conference (PC) order directing temporary maintenance of $250 per week was invalid, and an upward modification of the temporary maintenance to $7500 per month was proper. The PC ($250 per week) deviated from the presumptive award of temporary maintenance, did not specify the reasons for the deviation, and did not include the amount of temporary maintenance which would have been in accordance with Domestic Relations Law 236:

 

Because the temporary maintenance terms in the PC order deviated from the presumptive award of temporary maintenance without providing the statutorily required recitals, the terms are unenforceable … . Moreover, because the remaining terms of the PC order are intertwined with the temporary maintenance terms, the entire order is invalid … . Anonymous v Anonymous, 2016 NY Slip Op 05736, 1st Dept 8-4-16

FAMILY LAW (PRELIMINARY CONFERENCE (PC) ORDER SETTING TEMPORARY MAINTENANCE WHICH DEVIATED FROM THE PRESUMPTIVE AMOUNT INVALID; UPWARD MODIFICATION PROPER)/MAINTENANCE (FAMILY LAW, PRELIMINARY CONFERENCE (PC) ORDER SETTING TEMPORARY MAINTENANCE WHICH DEVIATED FROM THE PRESUMPTIVE AMOUNT INVALID; UPWARD MODIFICATION PROPER)/TEMPORARY MAINTENANCE (FAMILY LAW, PRELIMINARY CONFERENCE (PC) ORDER SETTING TEMPORARY MAINTENANCE WHICH DEVIATED FROM THE PRESUMPTIVE AMOUNT INVALID; UPWARD MODIFICATION PROPER)

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