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FAMILY COURT APPLIED THE WRONG LAW RE: EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO A NONPARENT; EXTRAORDINARY CIRCUMSTANCES FINDING IS APPEALABLE EVEN THOUGH CUSTODY WAS AWARDED TO MOTHER.

The Third Department reversed Family Court’s finding that extraordinary circumstances justified the award of custody of the child to mother’s cousin. After finding extraordinary circumstances supporting the award of custody to a nonparent had been demonstrated, Family Court went on to find that the best interests of the child required an award of custody to mother. The Third Department noted that a finding of extraordinary circumstances justifying the award of custody to a nonparent is appealable by the mother, even though custody was ultimately awarded to her. In making the “extraordinary circumstances” finding, Family Court had erroneously relied on Domestic Relations Law 72, which applies only to custody awards to grandparents. The court explained the correct applicable law:

 

“[A] parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, disruption of custody over an extended period of time or other extraordinary circumstances” … . “[T]he nonparent bears the heavy burden of proving extraordinary circumstances and the existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances” … . “The extraordinary circumstances analysis must consider ‘the cumulative effect’ of all issues present in a given case” …, including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” … . Since a finding of extraordinary circumstances may have enduring consequences for the parent … , it can be challenged on appeal even if, as here, the parent ultimately obtained custody. Matter of Brown v Comer, 2016 NY Slip Op 01218, 3rd Dept 2-18-16

 

FAMILY LAW (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)/CHILD SUPPORT STANDARDS ACT (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)

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FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF AN ORDER OF PROTECTION.

The Fourth Department determined Family Court did not have the authority to revoke respondent’s firearm permit as part of an order of protection:

Under Family Court Act § 846-a, the court may revoke a license to carry and possess a firearm “[i]f the court determines that the willful failure to obey [a protective] order involves violent behavior constituting the crimes of menacing, reckless endangerment, assault or attempted assault.” Where, as here, no such determination is made, the court is not authorized to revoke a respondent’s firearms permit … . Moreover, restriction of respondent’s right to use or possess firearms was not warranted under Family Court Act § 842-a, inasmuch as the court did not find, and could not find based on the evidence at the hearing, “that the conduct which resulted in the issuance of the order of protection involved (i) the infliction of physical injury . . . , (ii) the use or threatened use of a deadly weapon or dangerous instrument . . . , or (iii) behavior constituting any violent felony offense” (§ 842-a [2] [a]), or that there is a “substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued” (§ 842-a [2] [b]). We thus modify the order by vacating the provision directing that respondent is not to use or possess firearms nor hold or apply for a pistol permit during the pendency of the order. Matter of Schoenl v Schoenl, 2016 NY Slip Op 01060, 4th Dept 2-11-16

FAMILY LAW (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)/ORDER OF PROTECTION (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)/FIREARMS PERMIT (FAMILY COURT DID NOT HAVE AUTHORITY TO REVOKE FIREARMS PERMIT AS PART OF ORDER OF PROTECTION)

MOTHER DEMONSTRATED CHANGE IN CIRCUMSTANCES RELATED TO EXCESSIVE PUNISHMENT BY HUSBAND; FAMILY COURT REVERSED, CUSTODY AWARDED TO MOTHER.

The Fourth Department reversed Family Court finding changes in circumstances sufficient to modify the custody arrangement and award sole physical custody to mother. The evidence demonstrated father imposed excessive corporal punishment. The Fourth Department noted the Family Court judge placed too much emphasis on mother’s sexual conduct:

 

Although the father testified that each of [the] types of physical discipline was a one-time occurrence, the records of the daughter’s medical examination documenting that the daughter had “multiple bruises all over her body in different stages of healing,” as well as the son’s statements with respect to the frequency of the father’s physical discipline, support the finding that the father repeatedly inflicted excessive corporal punishment on the daughter. We thus conclude that there was a sufficient change in circumstances to warrant an inquiry into the best interests of the children … . Furthermore, even crediting the father’s assertion that the daughter’s injuries resulted from tantrums, we conclude that there was a sufficient change in circumstances inasmuch as the father was admittedly unable to handle the daughter’s behavioral issues, resorted to inappropriate physical discipline to punish the daughter for her alleged misbehavior, and requested that the mother remove the daughter from his care … .

We further agree with the mother and the AFC that the court’s custody determination lacks a sound and substantial basis in the record … . Upon our review of the relevant factors … , “including an evaluation of the character and relative parental fitness of the parties” … , we conclude that it is in the best interests of the children to award the mother sole legal and primary physical custody. Matter of DeJesus v Gonzalez, 2016 NY Slip Op 01059, 4th Dept 2-11-16

 

FAMILY LAW (EXCESSIVE PUNISHMENT BY FATHER CONSTITUTED SUFFICIENT CHANGE IN CIRCUMSTANCES, CUSTODY AWARDED TO MOTHER)/CUSTODY (EXCESSIVE PUNISHMENT BY FATHER CONSTITUTED SUFFICIENT CHANGE IN CIRCUMSTANCES, CUSTODY AWARDED TO MOTHER)

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ORDER ENTERED ON CONSENT IS NOT APPEALABLE; ONLY REMEDY IS MOTION TO VACATE.

In a Family Court matter, the Fourth Department noted that no appeal lies from an order entered by consent. The correct remedy is a motion to vacate the order:

 

Respondent mother appeals from an order denying her motion to vacate an order of fact-finding and disposition, which was entered on the consent of the parties. We agree with the mother that Family Court erred in denying the motion on the sole ground that a direct appeal from that order was pending. It is well settled that “[n]o appeal lies from an order entered upon the parties’ consent” … and, indeed, we dismissed the mother’s appeal from the consent order for that very reason … . Thus, contrary to the court’s determination, the mother’s sole remedy was ” to move in Family Court to vacate the order, at which time [she] [could] present proof in support of [her] allegations of duress, proof which is completely absent from this record’ ” … . Matter of Annabella B.C. (Sandra L.C.), 2016 NY Slip Op 01064, 4th Dept 2-11-16

 

APPEAL (NO APPEAL LIES FROM A CONSENT ORDER)/CIVIL PROCEDURE (NO APPEAL LIES FROM A CONSENT ORDER, ONLY REMEDY IS MOTION TO VACATE)/FAMILY LAW (NO APPEAL LIES FROM A CONSENT ORDER OF FACT-FINDING AND DISPOSITION, ONLY REMEDY IS MOTION TO VACATE)

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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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DESPITE THE HUSBAND’S EXTRAORDINARY WEALTH, THE WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE PRENUPTIAL AGREEMENT SHOULD NOT HAVE SURVIVED SUMMARY JUDGMENT.

The First Department, in a full-fledged opinion by Justice Richter, over a full-fledged concurring opinion and a full-fledged dissenting opinion, determined the wife’s action to set aside a prenuptial agreement, on the ground of overreaching, should have been dismissed. The fact that the husband’s net worth allegedly was $188 million in 2013, and the resulting contrast between what the husband could afford to provide and what the prenuptial agreement called for, among several other factors, raised a question of fact about “overreaching” in the eyes of the dissent. The arguments raised in the three opinions are too lengthy and detailed to fairly summarize here. On the issue of overreaching, the majority wrote:

 

Here, the wife’s motion did not challenge the prenuptial agreement on the ground that it is the product of coercion, duress or fraud. Nor did the wife argue that the agreement’s terms as a whole are unconscionable. Rather, her only claim was that the agreement is manifestly unfair due to the husband’s overreaching … . Although no actual fraud need be shown to set aside the agreement on this ground, the challenging party must show overreaching in the execution, such as the concealment of facts, misrepresentation, cunning, cheating, sharp practice, or some other form of deception … . In addition, the challenging party must show that the overreaching resulted in terms so manifestly unfair as to warrant equity’s intervention … .

Judged by these standards, the wife has failed to meet her heavy burden to set aside the prenuptial agreement. No issue of fact exists as to whether the husband engaged in overreaching during the negotiations leading up to the execution of the agreement. The agreement was the product of on-and-off discussions that took place over the course of more than a year and a half. Although initially the parties negotiated by themselves, about midway through, the wife retained the services of a partner in a prominent matrimonial firm. Negotiations continued by the parties and their attorneys, with draft agreements exchanged and terms modified. Both the fact that the wife was an active participant in the negotiations, and was the one who was pushing to get the agreement signed, are hard to reconcile with her current claim of overreaching. Gottlieb v Gottlieb, 2016 NY Slip Op 00613, 1st Dept 1-28-16

 

FAMILY LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/CONTRACT LAW (PRENUPTIAL AGREEMENT, WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)/PRENUPTIAL AGREEMENT (WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE AGREEMENT SHOULD HAVE BEEN DISMISSED)

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AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER THE DOCTRINE OF COMITY.

The Second Department determined an agreement, called a mahr agreement, which was part of a foreign Islamic divorce decree and which called for the payment to the wife of $250,000, was properly enforced by Supreme Court under the doctrine of comity:

 

“Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States” … . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York … . Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy … .

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby … . Badawi v Alesawy, 2016 NY Slip Op 00317, 2nd Dept 1-20-16

 

FAMILY LAW (AGREEMENT WHICH WAS PART OF A FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED UNDER DOCTRINE OF COMITY)/COMITY (AGREEMENT WHICH WAS PART OF FOREIGN ISLAMIC DIVORCE DECREE PROPERLY ENFORCED IN SUPREME COURT)

GOOD CAUSE FOR A FIVE-YEAR EXTENSION OF AN ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED.

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Chambers, determined petitioner had made showing of “good cause” for the extension of an order of protection, and the court ordered a five-year extension. The court took the opportunity to define “good cause” in this context:

 

… [I]n determining whether good cause has been established, courts should consider, but are not limited by, the following factors: the nature of the relationship between the parties, taking into account their former relationship, the circumstances leading up to the entry of the initial order of protection, and the state of the relationship at the time of the request for an extension; the frequency of interaction between the parties; any subsequent instances of domestic violence or violations of the existing order of protection; and whether the current circumstances are such that concern for the safety and well-being of the petitioner is reasonable … . * * *

The petitioner stated that, because they have a child in common, the parties continue to interact. They come into contact during litigation over custody and visitation issues and when they exchange the child at the drop-off location at the police station. The respondent also has a history of assaulting the petitioner, and their on-going discord continues. There is no evidence in the record to suggest that the petitioner’s more serious allegations were contrived. Moreover, it is undisputed that, since the entry of the subject order of protection, the respondent has pleaded guilty in the Criminal Court to disorderly conduct, and the Criminal Court has issued a two-year order of protection in favor of the petitioner. Therefore, it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded, and that the unavoidable interactions between the parties may subject her to a reoccurrence of violence … . Matter of Molloy v Molloy, 2016 NY Slip Op 00366, 2nd Dept 1-20-16

 

FAMILY LAW (GOOD CAUSE FOR EXTENSION OF ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED)/ORDERS OF PROTECTION (FAMILY COURT, CRITERIA FOR DEMONSTRATION OF GOOD CAUSE FOR AN EXTENSION EXPLAINED)

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SUPPRESSION OF JUVENILE’S PROVIDING FALSE NAME AND DATE OF BIRTH TO POLICE OFFICER PROPERLY DENIED; JUVENILE DELINQUENCY ADJUDICATION BASED UPON THE FALSE PEDIGREE INFORMATION PROPER.

The First Department, over an extensive dissent, determined suppression of the juvenile’s giving a false name and date of birth when asked for that information by a police officer was properly denied. The juvenile was warned by the officer that providing false pedigree information would result in a false personation charge (a class B misdemeanor). The juvenile was in fact found to have committed an act which, if committed by an adult, would constitute false personation. The court further determined the sentence of probation was the least restrictive alternative consistent with the juvenile’s needs. The dissent focused on the propriety of the sentence. With respect to the denial of the suppression motion, the court explained:

The court properly denied appellant’s motion to suppress her statement to the police, in which she gave a false name and date of birth, resulting in the false personation charge (Penal Law § 190.23). The police had probable cause to believe appellant was a runaway … . The then 14-year-old appellant, who appeared to be as young as 13, was alone in a PATH station in New Jersey, but she vaguely claimed to live in “upstate” New York. In addition, she had a bruised eye and was wearing provocative clothing, suggesting the possibility of some kind of sexual exploitation. The police were entitled to ask pedigree questions without Miranda warnings, even though an officer warned appellant, as required by the false personation statute, that providing false information would result in an additional charge … . Matter of Christy C., 2016 NY Slip Op 00095, 1st Dept 1-12-16

 

DOCTRINE OF EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION, CRITERIA EXPLAINED.

The Third Department affirmed Family Court’s finding that the doctrine of equitable estoppel did not apply to petitioner’s application for an order of filiation. Equitable estoppel is triggered when the party seeking an order of filiation has acquiesced in the development of a parent-child relationship with another man. Here, although the child recognized some persons as “father figures” no parent-child relationship had developed with any single person:

 

“The doctrine of equitable estoppel is a defense in a paternity proceeding which, among other applications, precludes a man . . . from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” … . The party asserting application of the doctrine — here, the attorney for the children — “has the initial burden of establishing a prima facie case to support that claim” … . Assuming that burden is met, the burden then shifts to the nonmoving party — here, petitioner — to establish that it would be in the best interests of the children to order the genetic marker test … .

… [W]e agree with Family Court that application of the doctrine of equitable estoppel is not warranted here. Although the children’s therapist testified on direct (and respondent testified on rebuttal) that the girls do not recognize petitioner as their father, “[n]oticeably absent from the record is any indication that [another identified individual] played a significant role in raising, nuturing or caring for [respondent’s children]” … . To the contrary, both the therapist and respondent acknowledged that the children identified a number of individuals as “father figures” in their lives … . Hence, establishing petitioner’s paternity would not disrupt an existing parent-child relationship between the children and another individual … . Matter of Patrick A. v Rochelle B., 2016 NY Slip Op 00079, 3rd Dept 1-7-16

 

FAMILY LAW (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)/EQUITABLE ESTOPPEL (FAMILY LAW, EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)/FILIATION, ORDER OF (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST)/PATERNITY (EQUITABLE ESTOPPEL DID NOT APPLY TO PETITIONER’S REQUEST FOR AN ORDER OF FILIATION)

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