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HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE.

The Second Department determined husband’s contribution to wife’s master’s degree was minimal. Therefore the award to the husband of 5% of the wife’s increased earning capacity was proper. The court explained the relevant law:

While the enhanced earnings of the defendant resulting from the Master’s degree and advanced certification she obtained during the marriage are marital property subject to equitable distribution … , ” it is . . . incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate that [he or she] made a substantial contribution to the titled party’s acquisition of that marital asset [and], [w]here only modest contributions are made by the nontitled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity'” … . Here, since the plaintiff’s contributions to the defendant’s acquisition of her degree and advanced certification were minimal, the Supreme Court providently exercised its discretion in awarding him only five percent of the value of the defendant’s enhanced earning capacity … . Taylor v Taylor, 2016 NY Slip Op 04705, 2nd Dept 6-15-16

 

FAMILY LAW (HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE)/EQUITABLE DISTRIBUTION (HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE)/ENHANCED EARNING CAPACITY (HUSBAND ENTITLED TO ONLY FIVE PERCENT OF WIFE’S ENHANCED EARNING CAPACITY FROM WIFE’S MASTER’S DEGREE OBTAINED DURING MARRIAGE)

MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE.

The Second Department, exercising its interest of justice jurisdiction, determined a new custody hearing was necessary because Family Court instructed mother not to speak to her attorney during recesses:

… [T]he mother’s hearing testimony spanned several court dates and took place over a period of months. At the end of four hearing dates, while the mother’s testimony was continuing, the Family Court instructed the mother not to discuss her testimony with her attorney during the recess. One of these recesses was overnight, two recesses were for approximately one week, and one recess was, because of adjournments, for more than three months. …

The Family Court violated the mother’s fundamental due process rights when it instructed her not to consult with her attorney during recesses, which resulted in her being unable to speak to her attorney over extended periods of time … . Matter of Turner v Valdespino, 2016 NY Slip Op 04724, 2nd Dept 6-15-16

 

FAMILY LAW (MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE)/ATTORNEYS (MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED BY FAMILY COURT NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE)/DUE PROCESS  (MOTHER’S DUE PROCESS RIGHTS VIOLATED, MOTHER INSTRUCTED BY FAMILY COURT NOT TO CONSULT WITH ATTORNEY DURING RECESSES, WHICH WERE EXTENSIVE)

UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS.

The Third Department, reversing Family Court, determined uncle should have been allowed to intervene in neglect proceedings to seek custody of the children who had been removed from the home:

There is no question that the uncle is authorized to seek intervention under the statute; he is one of the enumerated relatives permitted to pursue such relief, and both respondent and the child's father (among others) consented to his appearance in the proceeding. Nor does Family Ct Act § 1035 (f) limit the right of intervention to only the fact-finding and dispositional hearings held on a pending Family Ct Act article 10 neglect petition. Quite the contrary, it broadly permits a qualified relative seeking temporary or permanent custody of the child to participate “in all phases of dispositional proceedings” (Family Ct Act § 1035 [f] [emphasis added]). Furthermore, a permanency hearing is plainly dispositional in nature. A dispositional hearing is defined as “a hearing to determine what order of disposition should be made” (Family Ct Act § 1045), and Family Ct Act § 1089 (d) provides that, “[a]t the conclusion of each permanency hearing, the court shall . . . determine and issue its findings, and enter an order of disposition in writing.” Family Court seemed to acknowledge all of this, but reasoned that intervention was not permitted because the dispositional phase of the proceeding terminated upon completion of the dispositional hearing concerning the article 10 petition and the issuance of an order pursuant to Family Ct Act § 1052 (a). This was error. Matter of Demetria FF. (Tracy GG.), 2016 NY Slip Op 04499, 3rd Dept 6-9-16

FAMILY LAW (UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)/NEGLECT (UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)/CUSTODY UNCLE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN NEGLECT PROCEEDINGS)

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STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined Supreme Court should not have awarded sole custody to father without a hearing. The “adequate relevant information” standard used by the Appellate Division was not the correct one:

… [W]e hold only that, on this record, the Appellate Division erred in holding that a hearing was not required based on an application of the “adequate relevant information” standard. In doing so, we reaffirm the long-established principle that, as a general matter, custody determinations should be rendered only after a full and plenary hearing. We decline, however, to fashion a “one size fits all” rule mandating a hearing in every custody case statewide. However, where, as here, facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Accordingly, a court opting to forego a plenary hearing must take care to clearly articulate which factors were — or were not — material to its determination, and the evidence supporting its decision. Under the circumstances of this case, a plenary hearing was necessary. S.L. v J.R., 2016 NY Slip Op 04442, CtApp 6-9-16

FAMILY LAW (STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING)/CUSTODY (STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING)/EVIDENCE (FAMILY LAW, STANDARD FOR THE NEED FOR A HEARING TO DETERMINE CUSTODY CLARIFIED; HERE SUPREME COURT SHOULD NOT HAVE RULED ON CUSTODY WITHOUT A HEARING)

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JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS.

The Second Department determined the Family Court judge was biased against mother who sought to prevent her children from being immunized for religious reasons:

Public Health Law § 2164, which requires that an adequate dose or doses of an immunizing agent against certain diseases be administered to children at various intervals, does not apply to children whose parent or parents hold genuine and sincere religious beliefs which are contrary to the practices required therein (see Public Health Law § 2164[9]). When a parent seeks to assert a religious objection to immunization under Public Health Law § 2164(9), he or she must prove, by a preponderance of the evidence, that his or her opposition to immunization ” stems from genuinely-held religious beliefs'” … . * * *

Here, the record demonstrates that the Family Court had a predetermined outcome of the case in mind during the hearing. In addition to certain comments made by the court regarding the sincerity of the mother’s religious beliefs, the court took an adversarial stance, aggressively cross-examined the mother, continually interrupted her testimony, mocked her beliefs, and generally demonstrated bias. The Family Court’s bias unjustly affected the result of the hearing to the detriment of the mother. Matter of Baby Girl Z. (Yaroslava Z.), 2016 NY Slip Op 04425, 2nd Dept 6-8-16

FAMILY LAW (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/PUBLIC HEALTH LAW (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/JUDGES (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/PUBLIC HEALTH LAW (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/IMMUNIZATION (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)/RELIGION (JUDGE WAS BIASED AGAINST MOTHER WHO SOUGHT TO PREVENT THE IMMUNIZATION OF HER CHILDREN FOR RELIGIOUS REASONS)

FAMILY COURT SHOULD NOT HAVE DENIED FATHER VISITATION BASED UPON FATHER’S BEHAVIOR WHEN MOTHER TESTIFIED; FUTURE VISITATION SHOULD NOT HAVE BEEN CONDITIONED UPON DRUG SCREENINGS AND A MENTAL HEALTH EVALUATION.

The Second Department determined father’s in-court actions during mother’s testimony did not provide a sufficient basis for the denial of visitation to father. In addition, the Second Department found that Family Court improperly conditioned future visitation by father upon the results of drug screenings and a mental health evaluation:

… Family Court’s determination to deny the father visitation with the parties’ children is not supported by a sound and substantial basis in the record. ” [V]isitation is a joint right of the noncustodial parent and of the child'” … . “As a general rule, some form of visitation by the noncustodial parent is always appropriate, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access'”… .

Here, the Family Court improperly based its determination to deny the father parental access upon the father’s in-court demeanor … , including his inability “to control his temper in open Court” and an instance in which he called the mother “a liar” as she testified. However, no correlation was made between the father’s in-court demeanor and any detrimental effect on the children … . * * *

The Family Court also erred in directing the father to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation. “A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination” … . A court may also “direct a party to submit to counseling or treatment as a component of a visitation or custody order” … . A court may not, however, ” order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights'” … . Matter of Gonzalez v Ross, 2016 NY Slip Op 04413, 2nd Dept 6-8-16

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE DENIED FATHER VISITATION BASED UPON FATHER’S BEHAVIOR WHEN MOTHER TESTIFIED; FUTURE VISITATION SHOULD NOT HAVE BEEN CONDITIONED UPON DRUG SCREENINGS AND A MENTAL HEALTH EVALUATION)/VISITATION (FAMILY COURT SHOULD NOT HAVE DENIED FATHER VISITATION BASED UPON FATHER’S BEHAVIOR WHEN MOTHER TESTIFIED; FUTURE VISITATION SHOULD NOT HAVE BEEN CONDITIONED UPON DRUG SCREENINGS AND A MENTAL HEALTH EVALUATION)

FAMILY COURT PROPERLY IMPOSED THREE CONSECUTIVE SIX-MONTH JAIL TERMS UPON FATHER WHO WILFULLY FAILED TO PAY CHILD SUPPORT.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined Family Court had the power to order father to serve three consecutive six-month jail terms for willful failure to pay child support. Father never claimed an inability to pay:

The father in this case demonstrated the willful flaunting of support orders the Legislature sought to address in passing the Support Enforcement Act. Without making any attempt at an excuse for inability to pay, the father repeatedly failed to meet his court-ordered support obligations. His conduct resulted in a substantial amount owed in arrears and two suspended orders of commitment, one each in 2010 and 2012, for willfully violating Family Court support orders. Both suspended commitments were conditioned upon the father making timely child support payments. In 2013, Family Court found yet a third willful violation of a prior order, revoked the two suspended orders for the past violations, sentenced the father to a new six-month sentence, resulting in three consecutive six-month sentences. Once again, the father made no attempt to plead an inability to pay or seek modification of the support orders.

In ordering the term of incarceration, Family Court determined that the father willfully failed to comply with his child support obligations on three separate violation petitions and found good cause existed to revoke the father’s two suspended commitments. Matter of Columbia County Support Collection Unit v Risley, 2016 NY Slip Op 04325, CtApp 6-7-16

FAMILY LAW (FAMILY COURT PROPERLY IMPOSED THREE CONSECUTIVE SIX-MONTH JAIL TERMS UPON FATHER WHO WILFULLY FAILED TO PAY CHILD SUPPORT)/CHILD SUPPORT (FAMILY COURT PROPERLY IMPOSED THREE CONSECUTIVE SIX-MONTH JAIL TERMS UPON FATHER WHO WILFULLY FAILED TO PAY CHILD SUPPORT)

DISMISSAL WITHOUT A HEARING ON PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR.

The Third Department, reversing Family Court, determined the dismissal without a hearing of mother's petition for modification of the custody arrangement was error:

In her petition, the mother alleged, among other things, that the father was charged with reckless endangerment, vehicular assault and driving while intoxicated after he crashed a car in January 2015, thereby causing injury to himself and his three passengers. The mother also alleged that the father engaged in a course of conduct that alienated the children from her, that the children desired to spend more time with her and that her work schedule had become more flexible since completing her medical residency. If established after a hearing, these allegations could afford a basis for modifying the prior custodial arrangement and, thus, Family Court erred in dismissing the petition without first conducting a hearing … . Given that the mother's petition places both legal and physical custody in issue, we further note that if, after a hearing, the mother makes the requisite showing of a change in circumstances sufficient to warrant a best interests inquiry and Family Court determines that joint legal custody is not feasible, it is “'incumbent upon Family Court to determine a custodial arrangement based upon the best interests of the child[ren] despite the absence' of a petition definitively seeking sole custody” … . Matter of Engelhart v Bowman, 2016 NY Slip Op 04294, 3rd Dept 6-2-16

FAMILY LAW (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)/CUSTODY (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)

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FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER.

The Second Department, over a dissent, determined Family Court’s failure to strictly comply with all the notice requirements for judicial surrender of parental rights was not a ground for vacation of the judicial surrender:

Social Services Law § 383-c(3)(b) defines the procedures to be followed for the execution of judicial surrenders. Specifically, it requires the court to inform the parent of the right to legal counsel and to obtain supportive counseling, and to inform the parent of the consequences of the surrender, including the permanent loss of custodial rights and the immediate and irrevocable effect of the surrender. After informing the parent that the surrender becomes final and irrevocable upon its execution and acknowledgment, the court must provide the parent with a copy of the written instrument. * * *

A clear reading of the statute indicates that the failure by a court to orally advise a surrendering parent in open court of his/her right to supportive counseling is not a ground upon which a parent may rely when seeking to vacate or revoke a surrender. Pursuant to Social Services Law § 383-c(6)(d), the only available grounds for such relief are fraud, duress, or coercion. No such allegations are present in this case. Matter of Naquan L.G. (Carolyn C.), 2016 NY Slip Op 04218, 2nd Dept 6-1-16

FAMILY LAW (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/PARENTAL RIGHTS (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/JUDICIAL SURRENDER (PARENTAL RIGHTS, (FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)/SOCIAL SERVICES LAW (JUDICIAL SURRENDER OF PARENTAL RIGHTS, FAILURE TO COMPLY WITH ALL THE NOTICE REQUIREMENTS FOR JUDICIAL SURRENDER OF PARENTAL RIGHTS WAS NOT A GROUND FOR VACATION OF THE JUDICIAL SURRENDER)

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FAMILY COURT SHOULD HAVE MADE NEGLECT FINDING ALLOWING JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SJIS).

The Second Department determined Family Court should have made the findings necessary for the juvenile to apply for Special Immigrant Juvenile Status (SJIS). Father’s domestic violence in the presence of the juvenile and one act of excessive corporal punishment constituted neglect and reunification with the father was, therefore, not viable:

… [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 … . * * *

Acts of domestic violence in the presence of children may establish neglect … . Further, “[n]eglect may be established by even a single incident of excessive corporal punishment” … .

Here, the father’s conduct constituted neglect, which established that his reunification with the child is not viable. Matter of Ena S.Y. (Martha R.Y.–Antonio S.), 2016 NY Slip Op 04229, 2nd Dept 6-1-16

FAMILY LAW (FAMILY COURT SHOULD HAVE MADE NEGLECT FINDING ALLOWING JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SJIS))/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE MADE NEGLECT FINDING ALLOWING JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SJIS))/SPECIAL IMMIGRANT JUVENILE STATUS (SJIS) (FAMILY COURT SHOULD HAVE MADE NEGLECT FINDING ALLOWING JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SJIS))

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