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VISITATION PROPERLY GRANTED TO GRANDMOTHER DESPITE ANIMOSITY BETWEEN GRANDMOTHER AND FATHER.

The Second Department determined Family Court properly found grandmother was entitled to visitation. Animosity between father and grandmother is not a sufficient basis for denial of visitation:

” When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry'”  … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … . “In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene' (Domestic Relations Law § 72 [1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,' among other factors” … . The court must also consider ” the nature and basis of the parents' objection to visitation'” … . Matter of Seddio v Artura, 2016 NY Slip Op 04063, 2nd Dept 5-26-16

FAMILY LAW (VISITATION PROPERLY GRANTED TO GRANDMOTHER DESPITE ANIMOSITY BETWEEN GRANDMOTHER AND FATHER)/GRANDMOTHER, VISITATION RIGHTS (VISITATION PROPERLY GRANTED TO GRANDMOTHER DESPITE ANIMOSITY BETWEEN GRANDMOTHER AND FATHER)

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LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY.

The Second Department determined the liquidated damages clause in a separation agreement constituted an unenforceable penalty. The clause provided that, upon a breach of any of the terms, child support would increase from $1500 per month to over $5000:

“[P]arties to an agreement may provide for the payment of liquidated damages upon its breach, and such damages will be upheld if (1) the amount fixed is a reasonable measure of the probable actual loss in the event of breach, and (2) the actual loss suffered is difficult to determine precisely. However, if the liquidated damages do not bear a reasonable proportion to the loss actually sustained by a breach, they will constitute an unenforceable penalty” … .

Here, the parties entered into a separation agreement … which was incorporated but not merged into the judgment of divorce. In relevant part, the agreement provided that … the defendant would pay $1,500 per month in child support until the date of the sale of the marital residence, and $5,076.29 per month thereafter. However, if at any time prior to the sale of the marital residence, the defendant was not in compliance with “all of the terms” of the agreement, then his child support obligation would be increased to $5,076.29 per month.

Contrary to the plaintiff's contention, the Supreme Court correctly determined that the subject provision, as drafted, constituted an unenforceable penalty clause … . Fitzpatrick v Fitzpatrick, 2016 NY Slip Op 04018, 2nd Dept 5-25-16

FAMILY LAW (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)/CONTRACT LAW (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)/DAMAGES  (LIQUIDATED DAMAGES CLAUSE IN SEPARATION AGREEMENT CONSTITUTED AN UNENFORCEABLE PENALTY)

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FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department, reversing Family Court, determined the petition for guardianship of the child should have been granted, and Family Court should have made the findings necessary for the child to petition for Special Immigrant Juvenile Status (SIJS):

Here, the child is under the age of 21 and unmarried, and since we have appointed Daniel J. K. as the child's guardian, the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . We further find that the record fully supports the child's contention that his reunification with the father is not a viable option due to parental neglect … . Lastly, the record reflects that it would not be in the child's best interests to be returned to El Salvador. Matter of Axel S.D.C. v Elena A.C., 2016 NY Slip Op 04046, 2nd Dept 5-25-16

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT SHOULD HAVE GRANTED PETITION FOR GUARDIANSHIP AND MADE FINDINGS ALLOWING CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY TELEPHONE FROM FLORIDA.

The Fourth Department determined Family Court, in a neglect proceeding, abused its discretion by refusing mother's request to appear by telephone:

The record establishes that the mother moved to Florida, with financial assistance from DSS, during the period between the fact-finding hearing and the dispositional hearing. She requested permission to make future appearances by telephone, and the court denied the request, citing “the facts and circumstances of the case” and its preference that the mother be present “as any party of the proceeding should be present.” While section 75-j does not require courts to allow testimony by telephone or electronic means in all cases … , we conclude that the ruling here, in which the court failed to consider the impact of the mother's limited financial resources on her ability to travel to New York, was an abuse of discretion … . Matter of Thomas B. (Calla B.), 2016 NY Slip Op 03640, 4th Dept, 5-6-16

FAMILY LAW (FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY TELEPHONE FROM FLORIDA)/TELEPHONE, APPEARANCE BY (FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY TELEPHONE FROM FLORIDA)

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ATTORNEY WHO HAD PREVIOUSLY PROSECUTED MOTHER FOR ENDANGERING THE WELFARE OF A CHILD SHOULD NOT HAVE BEEN APPOINTED TO REPRESENT MOTHER’S CHILDREN IN A CUSTODY MATTER; IN THE ABSENCE OF EVIDENCE MOTHER WAS PREJUDICED BY CONFIDENTIAL INFORMATION MOTION TO VACATE CUSTODY STIPULATION ON CONFLICT OF INTEREST GROUNDS PROPERLY DENIED.

The Third Department determined Family Court should not have allowed an attorney who, as an assistant District Attorney, prosecuted mother for endangering the welfare of a child, to serve as the children's attorney in a custody matter. Mother moved to vacate the custody stipulation, in part based upon the attorney's (Bielicki's) conflict of interest. The fact that Bielicki should not have been appointed, in the absence of evidence of actual prejudice to mother from the use of confidential information, did not warrant vacation of the stipulation:

The mother … argues that Bielicki's representation of the children violated Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c), which provides that “a lawyer having information that the lawyer knows is confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.” The rule defines confidential governmental information as “information that has been obtained under governmental authority and that, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public” … . * * *

Bielicki's assignment as attorney for the children in this matter was contrary to the standards set forth in Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.11 (c) — and, for that reason, Family Court … should not have permitted Bielicki to serve in that capacity — such error, without more, does not warrant vacatur of the stipulation and order. Matter of Tina X. v John X., 2016 NY Slip Op 02874, 3rd Dept 4-14-16


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FAMILY COURT SHOULD HAVE GRANTED MOTHER’S APPLICATION FOR FINDINGS ALLOWING HER CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department, reversing Family Court, determined Family Court should have made the requisite declaration and findings allowing mother's children to apply for special immigrant juvenile status (SIJS):

… [T]he record supports the Family Court's findings that the children are under the age of 21 and unmarried, and that the children are dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . The court erred, however, with respect to its recital of the element of “reunification.” The law does not require a finding that reunification with one or both of a child's parents is viable, but that reunification with one or both of the parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law (see 8 USC § 1101[a][27][J][i]…). We have the authority to make that finding, and upon our independent factual review of the record, we find that reunification of the children with their father is not a viable option due to abandonment … . Matter of Marlene G. H. (Pedro H. P.), 2016 NY Slip Op 02817, 2nd Dept 4-13-16


AWARDING WIFE A DISTRIBUTIVE SHARE OF HUSBAND’S MEDICAL PRACTICE AND DETERMINING HUSBAND’S MAINTENANCE OBLIGATION BASED UPON INCOME FROM THE PRACTICE DID NOT CONSTITUTE DOUBLE-COUNTING.

The Second Department, reversing Supreme Court, determined that distributing part of the value of defendant-husband's medical practice to the wife, and figuring the amount of maintenance defendant was to pay based upon his income from the medical practice, did not constitute double counting:

… [T]he defendant's medical practices, which employ other individuals including several doctors, and his interest in an ambulatory surgical center, are not intangible assets which are “totally indistinguishable” from the income stream upon which his maintenance obligation was based … , and the valuation method used by the plaintiff's expert to determine the fair market value of these assets does not change their essential nature. Accordingly, the Supreme Court erred in concluding that it had no discretion to award the plaintiff any distributive share of the value of these assets because the parties considered the defendant's entire 2010 income in reaching a stipulation as to his maintenance obligation. Palydowycz v Palydowycz, 2016 NY Slip Op 02793, 2nd Dept 4-13-16


SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY.

The Second Department, in a full-fledged opinion by Justice Roman, affirming Family Court, determined one of the parties to a California same-sex marriage, Kelly S., had standing to seek visitation with the couple’s children, now in New York with the birth mother, Farah M., notwithstanding the parties’ failure to comply with California’s artificial insemination law. The two children named in the visitation proceedings were conceived by artificial insemination performed in the home by the mother, Farah M. All three of the couple’s children were fathered by the same sperm donor, a friend who maintained a relationship with the children. The Second Department held that Kelly S., who moved to Arizona after the couple separated, under principles of comity, had standing to bring an action for visitation in New York:

Here, the parties first entered into a registered domestic partnership in California in 2004, prior to the birth of Z.S., and thus, Kelly S. was the presumed parent of Z.S. by virtue of the parties’ status as registered domestic partners (see Cal Fam Code §§ 297.5[d]; 7611[a]). Moreover, Kelly S. gave her consent to be named as a parent on the birth certificate of Z.S., and the parties were later married in California in August 2008, making Kelly S. the presumed parent of Z.S. pursuant to California Family Code § 7611(c)(1). After the parties’ marriage, the child E.S. was born. Thus, Kelly S. is presumed to be the natural parent of E.S. by virtue of the parties’ marriage pursuant to California Family Code § 7611(a). Furthermore, the Family Court, as a matter of comity, properly recognized Kelly S. as the parent of the subject children under New York law … . Matter of S. v Farah M., 2016 NY Slip Op 02676, 2nd Dept 4-6-16

FAMILY LAW (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)/SAME-SEX MARRIAGE (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)/COMITY (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)/VISITATION  (SAME-SEX SPOUSE OF BIOLOGICAL MOTHER HAD STANDING TO SEEK VISITATION WITH CHILDREN CONCEIVED BY ARTIFICIAL INSEMINATION; CALIFORNIA MARRIAGE RECOGNIZED UNDER PRINCIPLES OF COMITY)

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INADEQUATE INQUIRY PRECEDING FATHER’S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL.

The Fourth Department reversed Family Court's order finding father willfully violated a support order because of the court's inadequate inquiry into father's waiver of his right to counsel:

At the parties' initial appearance, the Support Magistrate informed the father only that he had “the right to hire a lawyer [or] talk for [himself],” asked the father to choose between those options, and conducted no further inquiry when the father chose to proceed pro se. The Support Magistrate thus failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney … , and also failed to engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel … . Matter of Soldato v Caringi, 2016 NY Slip Op 02265, 4th Dept 3-25-16

FAMILY LAW (INADEQUATE INQUIRY PRECEDING FATHER'S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE INQUIRY PRECEDING FATHER'S WAIVER OF HIS RIGHT TO COUNSEL REQUIRED REVERSAL)

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INTENT TO HARASS NOT DEMONSTRATED; EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL.

The Fourth Department determined the evidence did not support an intent to harass and the family offense petition was dismissed. The court noted the fact that the related protective order had expired did not render the appeal moot because the order still imposes significant enduring consequences that can be relieved by an appellate decision:

The Referee found that respondent committed a family offense, i.e., harassment in the second degree, based upon the Referee's conclusion that respondent told petitioner during a lengthy telephone call that he did not know what he would do if he saw her with another man, sent her two or three text messages stating that he hoped to reconcile with her, and then left on petitioner's car several mementos that petitioner had given him along with the message that he would “never forget [her], bye.” Notwithstanding the Referee's implicit finding that petitioner was upset by the communications, “her reaction is immaterial in establishing [respondent]'s intent” … . Furthermore, although “[t]he requisite intent may be inferred from the surrounding circumstances” … , the circumstances here failed to establish that respondent acted with the requisite intent. Even crediting the Referee's credibility determinations that respondent engaged in the conduct described above, we conclude that such conduct was comprised of relatively innocuous acts that were insufficient to establish that respondent engaged in a course of conduct with the intent to harass, alarm or annoy petitioner … . Matter of Shephard v Ray, 2016 NY Slip Op 02239, 4th Dept 3-25-16

FAMILY LAW (FAMILY OFFENSE, INTENT TO HARASS NOT DEMONSTRATED)/FAMILY LAW (FAMILY OFFENSE, EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL)/FAMILY OFFENSE (HARASSMENT, INTENT TO HARASS NOT DEMONSTRATED)/HARASSMENT (FAMILY OFFENSE, INTENT TO HARASS NOT DEMONSTRATED)/APPEALS (FAMILY OFFENSE, EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL)

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