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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)

DESPITE FLORIDA DIVORCE, NEW YORK HAD JURISDICTION OVER THE CUSTODY/VISITATION MATTERS BASED UPON THE PARTIES’ PRESENCE IN NEW YORK.

Reversing Family Court, the Third Department determined New York had jurisdiction over the custody/visitation matters, despite the Florida divorce. The parties had subsequently moved from Florida to New York and there was no indication the relocation was temporary. The criteria for New York’s jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has nothing to do with the legal residence of the parties. The court further determined that the relevant provisions of the UCCJEA did not conflict with the Parental Kidnapping Prevention Act (PKPA) and was therefore not preempted by the PKPA. With respect to New York’s juriisdiction, the court wrote:

Consistent with the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA), which is codified in Domestic Relations Law article 5-A, “a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial custody determination under [Domestic Relations Law § 76 (1) (a) or (b)]” and, insofar as is relevant here, “[a] court of this state . . . determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state” (Domestic Relations Law § 76-b [2]). As to the first criteria, jurisdiction to render an initial custody determination may be predicated upon, among other things, a finding that “this state is the home state of the child on the date of the commencement of the proceeding” (Domestic Relations Law § 76 [1] [a]). A child’s home state, in turn, is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a [7]…). A child custody proceeding includes a proceeding in which visitation with the child is at issue (see Domestic Relations Law § 75-a [4]), and the commencement of a proceeding “means the filing of the first pleading in a proceeding” (Domestic Relations Law § 75-a [5] … ). Matter of Lewis v Martin, 2015 NY Slip Op 08879, 3rd Dept 12-3-15

FAMILY LAW (JURISDICTION OVER CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/JURISDICTION (CUSTODY, NEW YORK’S JURISDICTION DESPITE FLORIDA DIVORCE)/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) (JURISDICTION OF NEW YORK DESPITE FLORIDA DIVORCE)/PARENTAL KIDNAPPING PREVENTION ACT (PKPA) (NO CONFLICT WITH UCCJEA)

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PRIMA FACIE CASE OF NEGLECT REBUTTED BY MOTHER’S EXPERT.

Reversing Family Court, the Second Department determined expert testimony on behalf of the mother rebutted the petitioner’s prima facie case of neglect. The court noted the nature of petitioner’s prima facie proof is akin to the doctrine of res ipsa loquitur in negligence. Proof of an injury to a child which would not occur if the child had been in the care of a responsible caregiver is enough to make out a prima facie case. Expert testimony demonstrating the injuries may have occurred when the child was not in the mother’s care and further demonstrating alternate causes of the injuries was sufficient to rebut the prima facie case of neglect/abuse:

Section 1046(a)(ii) of the Family Court Act permits a finding of abuse based upon evidence of an injury to a child which would ordinarily not occur absent acts or omissions of the responsible caretaker, and “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” … . “If the petitioner establishes a prima facie case of abuse, the burden of going forward shifts to respondents to rebut the evidence of parental culpability,’ although the burden of proof always remains with the petitioner” … .

The petitioner established a prima facie case of abuse … . Contrary to the petitioner’s contention, however, the mother presented sufficient evidence to rebut the petitioner’s case, through the testimony of her expert witness. The mother’s expert witness testified that the injuries … occurred during a period of time when the petitioner had not established that [the child] was in the exclusive care of the mother. Additionally, the expert opined that the injuries could have resulted from alternate mechanisms. Thus, the petitioner failed to establish, by a preponderance of the evidence, that the mother abused [the child] … . Matter of Miguel G. (Navil G.). 2015 NY Slip Op 08834, 2nd Dept 12-2-15

FAMILY LAW (NEGLECT NOT ESTABLISHED, PETITIONER’S CASE REBUTTED)/NEGLECT (PETITIONER’S PRIMA FACIE CASE REBUTTED BY EXPERT TESTIMONY)/EXPERT TESTIMONY (SUFFICIENT TO REBUT PRIMA FACIE CASE OF NEGLECT)

Extraordinary Circumstances Warranted Award of Custody to Non-Parent

The Fourth Department, over a two-justice dissent, determined Family Court properly awarded custody of the child to the child’s half brother:

It is well-settled that, “as between a parent and nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Here, the evidence established that the mother and the father changed residences frequently over a period of 18 months, and they were evicted from one residence and were homeless for several months, living in a tent or their vehicle. The child changed schools five times in four school districts over that same time period and, with each change in school, the child missed at least several days and sometimes several weeks of school. Indeed, we note that “[u]nrebutted evidence of excessive school absences [is] sufficient to establish . . . educational neglect” … . The evidence also supports the court’s conclusion that the child had poor hygiene. Thus, the record establishes that the mother and the father have exhibited “behavior evincing utter indifference and irresponsibility,” and the court therefore properly concluded that extraordinary circumstances exist…  .

It is well settled that, “once extraordinary circumstances are found, the court must then make the disposition that is in the best interest[s] of the child” … , and we agree with the court that the child’s best interests are served by awarding petitioner custody of the child with visitation to the mother and the father… . Matter of Stent v Schwartz, 2015 NY Slip Op 08535, 4th Dept 11-20-15

 

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Neglect Finding Cannot Be Based Upon Judicial Notice of a Drug Conviction

Reversing Family Court, the Second Department explained the pre-requisites for a neglect finding. Here Family Court erroneously made a neglect finding by taking judicial notice of mother’s drug conviction:

Family Court Act § 1051(a) provides that the Family Court may enter an order finding that a child is an abused child or a neglected child on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing at which the petitioning agency establishes the allegations of abuse or neglect by a preponderance of the evidence (see Family Ct Act §§ 1044, 1046[b][i]). Further, in appropriate cases, the Family Court may also enter an order finding that a child is an abused child or a neglected child on a motion for summary judgment in lieu of holding a fact-finding hearing, upon the petitioning agency’s prima facie showing of neglect or abuse as a matter of law, and the respondent’s failure to raise a triable issue of fact in opposition to the motion … .

Here, the Family Court did not enter the finding of neglect on the consent of all parties and the attorney for the child, or following the completion of a fact-finding hearing (see Family Ct Act § 1051[a]). Moreover, the Family Court did not enter the finding of neglect upon a motion by the DSS for summary judgment … . Thus, the Family Court, which simply took judicial notice at a conference of a certificate of disposition, lacked the authority to enter a finding of neglect. Matter of Vincent M. (Jamie M.), 2015 NY Slip Op 08170, 2nd Dept 11-12-15

 

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