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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)

DENIAL OF MOTHER’S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION.

The Fourth Department determined Family Court should have held a Lincoln hearing before granting father's motion to dismiss mother's petition to modify a custody order which awarded sole legal and primary physical custody of their daughter, now 14, to father:

We conclude that the court abused its discretion in denying the mother's request that it conduct a Lincoln hearing before ruling on the father's motion … . Such a hearing may be conducted “during or after fact-finding” … , and may be used to support an allegation of a change in circumstances … . The decision whether to conduct such a hearing is discretionary, but it is “often the preferable course” to conduct one … .

In this case, the child was 14 years old at the time of trial and expressed a preference to live with the mother, the Attorney for the Child did not oppose a Lincoln hearing, and many of the changed circumstances alleged by the mother concerned matters within the personal knowledge of the child but not that of the mother or her witnesses. Under those circumstances, we conclude that a Lincoln hearing would have provided the court with ” significant pieces of information [it needed] to make the soundest possible decision' ” … . Matter of Noble v Brown, 2016 NY Slip Op 02238, 4th Dept 3-25-16

FAMILY LAW (DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)/CUSTODY (FAMILY LAW, DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)/LINCOLN HEARING (DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)

PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF THE PRECISE TERM.

The First Department, over an extensive dissent, determined the prenuptial agreement waived both parties' entitlement to temporary maintenance during the divorce proceedings. The majority gleaned the intent to waive temporary maintenance from various provisions of the agreement, even though the terms “temporary maintenance” and “interim spousal support” were not used. The dissent argued that the waiver of “maintenance” in the agreement should not be interpreted to waive “temporary maintenance:”

Although the dissent acknowledges that “no particular catechism is required to waive temporary maintenance claims,” it nevertheless finds the agreement ambiguous and suggests that the parties may only have intended to waive a final award of maintenance. No fair reading of the agreement supports that conclusion. When read as a whole, the agreement contains no ambiguity as to whether the parties intended to waive temporary maintenance. As noted, the agreement waives “any and all” maintenance claims, “now and in the future.” Contrary to the dissent's view, there is nothing imprecise about the phrase “any and all.” Indeed, this Court has repeatedly found the use of that phrase to be “clear”… . Further, although minimized by the dissent, the agreement explicitly states that the parties are “fully capable of being self supporting,” which is another indicia that neither intended to seek any kind of maintenance. Anonymous v Anonymous, 2016 NY Slip Op 02016, 1st Dept 3-22-16

FAMILY LAW (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)/MAINTENANCE (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)/PRENUPTIAL AGREEMENT (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)

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INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL; PRESERVATION OF THIS ISSUE NOT NECESSARY.

The Fourth Department reversed Family Court's finding respondent had willfully violated a court order because of an insufficient waiver of the right to counsel. The court noted that a prior decision requiring preservation of the right-to-counsel issue should no longer be followed:

Although the Support Magistrate properly advised respondent that he had the right to counsel (see Family Ct Act § 262 [a] [vi]), we agree with respondent that the Support Magistrate failed to make a ” searching inquiry' ” to ensure that his waiver of the right to counsel was a knowing, voluntary and intelligent choice, and thus that he was denied his right to counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing. To the extent that our decision in Matter of Huard v Lugo (81 AD3d 1265… requires preservation of a contention that the Support Magistrate erred in allowing the respondent to proceed pro se at a fact-finding hearing, that decision is no longer to be followed. Matter of Girard v Neville, 2016 NY Slip Op 01947, 4th Dept 3-18-16

FAMILY LAW (INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/APPEALS (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)

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JUVENILE DELINQUENCY ADJUDICATION AGAINST THE WEIGHT OF THE EVIDENCE; ANALYTICAL CRITERIA EXPLAINED.

The Second Department, over a dissent, determined the juvenile delinquency finding was against the weight of the evidence. The juvenile was accused of throwing a kitten under the wheels of a moving vehicle. The single-witness case relied upon weak identification evidence. The court explained the “weight of the evidence” analytical criteria in this context:

We must “weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” … . In weighing the conflicting testimony in a single-witness identification case, as here, we must independently consider, among other things, the truthfulness and reliability of the identification testimony … . * * *

… [T]he reliability of the witness’s identification of the appellant was called into doubt by several factors. An examination of her testimony reveals that the witness had only a limited opportunity and ability to observe the perpetrator because the incident occurred over a relatively short period of time, and there was a distance of a minimum of 10 feet between the witness and the perpetrator during their interaction. The witness was also admittedly excited and upset during the incident. In addition, the witness’s description of the perpetrator lacked specificity, and did not include body shape, height, weight, facial features, skin tone, accent, or any distinctive characteristics. We further note that the incident occurred in the late afternoon near the time that students were being released from several neighborhood schools, that the perpetrator was dressed in a school uniform similar in type to the uniforms worn by students at those schools, and that the witness’s description of the school uniform worn by the perpetrator did not match the appellant’s school uniform. Under these circumstances, the witness’s identification of the appellant was not convincing when balanced against the substantial evidence submitted by the appellant in her own defense. Matter of Shannel P., 2016 NY Slip Op 01853, 2nd Dept 3-16-16

FAMILY LAW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/JUVENILE DELINQUENCY (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/EVIDENCE (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/APPEALS (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE REVIEW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE, CRITERIA EXPLAINED)

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