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FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING THE PROCEDURE REQUIRED BY FAMILY COURT ACT 154-c VACATED.

The Third Department determined Family Court did not follow the statutory procedure for issuing final orders of protection. Although a court may issue a temporary order of protection on its own motion without following the procedure, it may not do so for final orders:

 

… Family Ct Act § 154-c (3) provides, in relevant part: “No order of protection may direct any party to observe conditions of behavior unless: (i) the party requesting the order of protection has served and filed a petition or counter-claim in accordance with article four, five, six or eight of this act and, (ii) the court has made a finding on the record that such party is entitled to issuance of the order of protection which may result from a judicial finding of fact, judicial acceptance of an admission by the party against whom the order was issued or judicial finding that the party against whom the order is issued has given knowing, intelligent and voluntary consent to its issuance” (emphasis added). Although a Family Court can issue a temporary order of protection on its own motion and, in so doing, it would “not [be] required to follow all of the ordinary procedural requirements” (… see Family Ct Act § 828 [1] [a]), where, as here, the court enters a final order of protection, it is required to observe the procedural steps set forth in Family Ct Act § 154-c (3) … . Indeed, Family Ct Act § 154-c (3) was amended in 1998 “to incorporate, explicitly, federal minimum due-process requirements regarding judicial findings as a prerequisite to issuing orders of protection, to ensure that such orders are given full faith and credit by courts of other jurisdictions” …

Here, although there was an exchange of proposed terms for mutual orders of protection, the mother clearly indicated that she did not consent to the orders containing the terms that Family Court ultimately adopted on its own motion or admit any pertinent allegations set forth in the father’s family offense petition … . Nor did Family Court conduct an examination of the factual basis of the parties’ family offense petitions or make a finding that the terms objected to by the mother were “reasonably necessary” to protect the parties or their children … . Matter of Daniel W. v Kimberly W., 2016 NY Slip Op 00070, 3rd Dept 1-7-16

 

FAMILY LAW (FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING STATUTORY PROCEDURE VACATED)/ORDERS OF PROTECTION (FAMILY COURT, FINAL ORDERS OF PROTECTION ISSUED ON THE COURT’S OWN MOTION WITHOUT FOLLOWING STATUTORY PROCEDURE VACATED)

GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING AWARD OF CUSTODY OF GRANDCHILD TO HER, ANALYTICAL PRINCIPLES EXPLAINED.

The Third Department determined grandmother did not meet her burden of demonstrating extraordinary circumstances justifying the award of custody of the child to her. Family Court’s award of joint custody to mother and father was affirmed. Mother had relinquished custody to grandmother as an emergency measure (due to domestic abuse) but had continuously worked to regain custody. The court explained the relevant analytical principles:

 

It is well settled that, in the absence of extraordinary circumstances such as surrender, abandonment, persistent neglect, unfitness or an extended period of custody disruption, a parent has a claim of custody to his or her child superior to all others … . Here, since no finding of extraordinary circumstances had previously been made, the grandmother bore “the heavy burden of first establishing the existence of extraordinary circumstances to overcome the . . . parents’ superior right of custody” … . Only upon such a showing would Family Court proceed to address the issue of the child’s best interests … . Relevant here, “a prolonged separation of the . . . parent and the child for at least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of [a] grandparent” may constitute a disruption of custody sufficient to demonstrate extraordinary circumstances (Domestic Relations Law § 72 [2] [b]…). “An order placing a child in a nonparent’s custody upon a parent’s consent is neither a judicial finding nor an admission of extraordinary circumstances” … . Moreover, if the parent spends the period of separation trying to regain custody of his or her child, that period would not necessarily support a finding of extraordinary circumstances … . Matter of Elizabeth SS. v Gracealee SS., 2016 NY Slip Op 00068, 3rd Dept 1-7-16

 

FAMILY LAW (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)/CUSTODY (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)

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ONLY A CLOSE RELATIVE COULD SUFFICIENTLY ALLEGE THAT THE APPELLANT WAS UNDER SIXTEEN TO SUPPORT THE AGE-ELEMENT OF THE CHARGED OFFENSE; HERE APPELLANT’S COUSIN’S ALLEGATION APPELLANT WAS FOURTEEN WAS INSUFFICIENT.

The Second Department determined that the allegation of appellant’s age in a juvenile delinquency petition was insufficient. The adjudication based upon “unlawful possession of weapons by persons under sixteen” was therefore deleted. Although an allegation of age by a close relative will be sufficient to support an age-element of an offense, here the age allegation was made by appellant’s cousin:

Here, the petition failed to provide an adequate nonhearsay allegation of an essential element of Penal Law § 265.05, namely, that the appellant was under the age of sixteen at the time of the incident. The complainant’s supporting deposition alleged that the appellant was his “14-year-old cousin,” but it did not state the source of the complainant’s knowledge of the appellant’s age. The presentment agency contends that the allegation is sufficient, and it relies on the proposition that “it is generally recognized that the age of a family member is common knowledge within a family” (Matter of Brandon P., 106 AD3d 653, 653). That proposition, however, applies to close family relationships. Notably, in Matter of Brandon P., the allegation as to the appellant’s age was made by the appellant’s sister (see id. at 653). The relationship of “cousin,” by contrast, is too distant and too broad in degree of consanguinity (see Black’s Law Dictionary 442-443 [10th ed 2014]) to meet the requirements of Family Court Act § 311.2 in this case. Specifically, the complainant’s statement regarding the appellant’s age was not a sufficient nonhearsay allegation based on personal knowledge establishing reasonable cause to believe that the age element of the offense was met. Since count four of the petition was jurisdictionally defective, that count must be dismissed, and the order of disposition and the order of fact-finding modified accordingly … . Matter of Diamond J. (Anonymous), 2015 NY Slip Op 09689, 2nd Dept 12-30-15

FAMILY LAW (JUVENILE DELINQUENCY, AGE-ALLEGATION FOR AN OFFENSE CHARGED IN A JUVENILE DELINQUENCY PETITION CAN ONLY BE MADE BY A CLOSE RELATIVE)/JUVENILE DELINQUENCY (AGE-ALLEGATION FOR AN OFFENSE CHARGED IN A JUVENILE DELINQUENCY PETITION CAN ONLY BE MADE BY A CLOSE RELATIVE)/EVIDENCE (AGE-ALLEGATION FOR AN OFFENSE CHARGED IN A JUVENILE DELINQUENCY PETITION CAN ONLY BE  MADE BY A CLOSE RELATIVE)

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STATEMENT TO LAW ENFORCEMENT PERSONNEL BY AN INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING WHICH LED TO A MENTAL HEALTH COMMITMENT OF THE JUVENILE.

The Second Department determined a statement made to law enforcement personnel by a juvenile respondent who was deemed incapacitated was admissible in the probable cause hearing which led to the juvenile’s commitment to the custody of the commissioner of mental health/mental retardation and developmental disabilities. The juvenile allegedly started a fire in his father’s house. Family Court found the juvenile to be incapacitated and therefore no fact-finding hearing was held. At the probable cause hearing (re: commitment of the juvenile) the juvenile’s statement, made after waiving his Miranda rights, was admitted in evidence:

… Family Court did not violate [the juvenile’s] due process rights by ordering his commitment based on a probable cause finding that depended, in part, on a written statement he made to law enforcement officials. The court’s finding that the appellant lacked the capacity to proceed to a fact-finding hearing did not equate to a finding that the appellant could not comprehend the Miranda warnings … that were administered by a police officer before the appellant made his statement. To be competent to proceed to a fact-finding hearing, a juvenile respondent must have the capacity to understand the proceedings and to assist in his or her own defense (see Family Ct Act § 301.2[13]). In contrast, “[a]n individual may validly waive Miranda rights so long as the immediate import of those warnings is comprehended, regardless of his or her ignorance of the mechanics by which the fruits of that waiver may be used later in the criminal process” … . Thus, the court’s incapacity finding did not undermine the reliability of the appellant’s statement with respect to whether there was probable cause to believe that the appellant committed an offense. Further, the statement was, prima facie, competent for that purpose, even if it might later be rendered inadmissible by extrinsic proof … . Matter of Jaime E. S. (Anonymous), 2015 NY Slip Op 09694, 2nd Dept 12-30-15

FAMILY LAW (JUVENILE DELINQUENCY, STATEMENT MADE BY INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING)/JUVENILE DELINQUENCY (STATEMENT MADE BY INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING)/EVIDENCE (JUVENILE DELINQUENCY, STATEMENT MADE BY INCAPACITATED JUVENILE ADMISSIBLE IN PROBABLE CAUSE HEARING)

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STIPULATION WHICH DID NOT SPECIFICALLY CALL FOR A REDUCTION OF CHILD SUPPORT UPON THE EMANCIPATION OF THE OLDEST CHILD WOULD NOT BE INTERPRETED OTHERWISE.

The First Department, over a two-justice dissent, determined that a stipulation which was incorporated but not merged into the divorce did not call for the reduction of child support upon emancipation of the older child. The dissent argued that, applying standard principles of contract interpretation, it was clear the parties intended emancipation of the older child would result in the reduction of child support, despite the absence of a formula for the reduction in the stipulation:

There is no evidence, other than plaintiff’s testimony, that the parties had agreed to a reduction in child support on account of any purported emancipation of the older child. Indeed, their agreement, freely entered into, does not allocate plaintiff’s child support obligation as between the children or provide a formula for a reduction in the event of one child’s emancipation … . “When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children” … . Schulman v Miller, 2015 NY Slip Op 09603, 1st Dept, 12-29-15

FAMILY LAW (STIPULATION DID NOT CALL FOR REDUCTION OF CHILD SUPPORT UPON EMANCIPATION OF OLDER CHILD)/CONTRACT LAW (STIPULATION DID NOT CALL FOR REDUCTION OF CHILD SUPPORT UPON EMANCIPATION OF OLDER CHILD)/STIPULATION, DIVORCE (STIPULATION DID NOT CALL FOR REDUCTION OF CHILD SUPPORT UPON EMANCIPATION OF OLDER CHILD)/CHILD SUPPORT (STIPULATION DID NOT CALL FOR REDUCTION OF CHILD SUPPORT UPON EMANCIPATION OF OLDER CHILD)

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IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.

The Fourth Department determined Family Court, in a visitation-modification proceeding, properly found that the daughter’s out-of-court statements about alleged sex abuse were not reliably corroborated:

“It is well settled that there is an exception to the hearsay rule in custody [and visitation] cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046 (a) (vi)’ . . . , where . . . the statements are corroborated” … . “Although the degree of corroboration [required] is low, a threshold of reliability’ must be met” … . “The repetition of an accusation does not corroborate a child’s prior statement’ . . . , although the reliability threshold may be satisfied by the testimony of an expert” … . “Family Court has considerable discretion in deciding whether a child’s out-of-court statements alleging incidents of abuse have been reliably corroborated . . . , and its findings must be accorded deference on appeal where . . . the . . . [c]ourt is primarily confronted with issues of credibility” … .

Here, there is no direct or physical evidence of abuse, and thus “the case turns almost entirely on issues of credibility” … . Although the mother correctly notes that some corroboration may be provided through the consistency of a child’s statements and that a child’s out-of-court statements may be corroborated by testimony regarding the child’s increased sexualized behavior … , the court determined here that the mother’s witnesses—who provided the corroborative testimony regarding the daughter’s purportedly consistent statements and sexualized behavior—were not credible. Matter of East v Giles, 2015 NY Slip Op 09466, 4th Dept 12-23-15

FAMILY LAW (CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/EVIDENCE (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)/HEARSAY (IN VISITATION-MODIFICATION PROCEEDING, CHILD’S OUT-OF-COURT STATEMENTS NOT SUFFICIENTLY CORROBORATED)

GRANDPARENTS, WITH WHOM THE CHILD HAD RESIDED FOR TEN YEARS, HAD STANDING TO SEEK CUSTODY OF THE CHILD; THERE IS NO REQUIREMENT THAT THE 24-MONTH SEPARATION OF PARENT AND CHILD REQUIRED BY THE “GRANDPARENT STANDING” STATUTE BE CHARACTERIZED BY A COMPLETE LACK OF CONTACT BETWEEN PARENT AND CHILD.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the grandparents had demonstrated standing to seek custody of the child, who had lived with the grandparents from infancy for ten years. Mother argued that, in order to meet the standing requirement of a 24-month separation of parent and child, the child must have had no contact with her during at least a 24-month period. The Court of Appeals disagreed, finding no “absence of parental contact” requirement. The case was remanded to the Appellate Division for an application of the “best interests of the child” analysis in the custody proceedings:

Domestic Relations Law § 72 (2) sets forth three “elements” required to demonstrate the extraordinary circumstance of an “extended disruption of custody,” specifically: (1) a 24-month separation of the parent and child, which is identified as “prolonged,” (2) the parent's voluntary relinquishment of care and control of the child during such period, and (3) the residence of the child in the grandparents' household. * * *

Contrary to the mother's contention, a lack of contact is not a separate element under the statute. Indeed, there is no explicit statutory reference to contact or the lack thereof. Rather, the quality and quantity of contact between the parent and child are simply factors to be considered in the context of the totality of the circumstances when determining whether the parent voluntarily relinquished care and control of the child, and whether the child actually resided with the grandparents for the required “prolonged” period of time. Matter of Suarez v Williams, 2015 NY Slip Op 09231, CtApp 12-16-15

FAMILY LAW (GRANDPARENTS HAD STANDING TO SEEK CUSTODY, NO REQUIREMENT OF A COMPLETE ABSENCE OF PARENTAL CONTACT)/CUSTODY (GRANDPARENTS HAD STANDING TO SEEK CUSTODY, NO REQUIREMENT OF A COMPLETE ABSENCE OF PARENTAL CONTACT)/GRANDPARENT CUSTODY (NO REQUIREMENT OF A COMPLETE ABSENCE OF PARENTAL CONTACT)

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NO EQUITABLE DISTRIBUTION FUND TO WHICH ATTORNEY’S CHARGING LIEN COULD ATTACH.

The Second Department explained when an attorney’s charging lien can be imposed in divorce proceedings:

“A charging lien is a security interest in the favorable result of litigation, giving the attorney equitable ownership interest in the client’s cause of action and ensuring that the attorney can collect his fee from the fund he has created for that purpose on behalf of the client” (… see Judiciary Law § 475). In a matrimonial action, a charging lien will be available “to the extent that an equitable distribution award reflects the creation of a new fund by an attorney greater than the value of the interests already held by the client” … . However, “[w]here the attorney’s services do not create any proceeds, but consist solely of defending a title or interest already held by the client, there is no lien on that title or interest” … .

In this case, the plaintiff and the defendant already owned the marital residence jointly as tenants by the entirety. Thus, the parties’ settlement agreement merely permitted the plaintiff to retain her existing interest in the marital residence. “Although the nature of the property was converted from realty into dollars, her interest remained the same. Thus, no equitable distribution fund to which a charging lien can attach was created by the efforts of the [plaintiff’s] attorney” … . Charnow v Charnow, 2015 NY Slip Op 09241, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

ATTORNEYS (CHARGING LIEN IN MATRIMONIAL ACTIONS)/FAMILY LAW (ATTORNEY’S CHARGING LIEN IN MATRIMONIAL ACTIONS)/CHARGING LIEN (MATRIMONIAL ACTIONS)

NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.

The Second Department determined Family Court should not have concluded it did not have subject matter jurisdiction over a custody matter without conducting a hearing. It was alleged father was wrongfully preventing the children from returning to New York from Bangladesh. If father prevented the children from returning to New York in the six month period before the petition was filed, New York, pursuant to the controlling statutes, would be the “home state:”

Under the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if the “state is the home state of the child” (Domestic Relations Law § 76[1][a]…). A “[h]ome [s]tate” is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]). The definition of a “[h]ome [s]tate” also permits a period of temporary absence during the six-month time frame necessary to establish home-state residency (Domestic Relations Law § 75-a[7]…). In addition, it is established that a parent “may not wrongfully remove or withhold a child from the other parent for the purpose of establishing a home state’ for that child” … .

Here, there are disputed allegations as to the circumstances of the continued presence of the children in Bangladesh. Thus, under the circumstances of this case, the Family Court erred in dismissing the petition based on lack of subject matter jurisdiction without conducting a hearing as to whether the children were wrongfully prevented from returning to New York during the six-month period preceding the petition. If that is the case, New York remained the “home state” of the children in light of such wrongdoing … . Matter of Padmo v Kayef, 2015 NY Slip Op 09289, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

FAMILY LAW (JURISDICTION OVER CUSTODY, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/CUSTODY (JURISDICTION OVER CUSTODY MATTER, PARENT PREVENTS CHILDREN FROM RETURNING TO NEW YORK)/JURISDICTION (FAMILY COURT, JURISDICTION OVER CUSTODY MATTER WHERE PARENT PREVENTS RETURN OF CHILDREN TO NEW YORK)

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MOTHER’S MOTION FOR FINDINGS ALLOWING HER CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED.

Reversing Family Court, the Second Department determined mother’s motion for findings allowing her child to petition for special immigrant juvenile status (SIJS) should have been granted:

… [W]e declare that the child has been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court, and we find that the child is unmarried and under 21 years of age, that reunification with one of his parents is not viable due to parental abandonment, and that it would not be in his best interests to return to El Salvador … . Matter of Tommy E. H. (Anonymous) v Silvia C. (Anonymous), 2015 NY Slip Op 09104, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

SPECIAL IMMIGRANT JUVENILE STATUS (MOTHER’S MOTION FOR FINDINGS SHOULD HAVE BEEN GRANTED)/IMMIGRATION LAW (MOTHER’S MOTION FOR FINDINGS ALLOWING HER CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS SHOULD HAVE BEEN GRANTED)

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