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HUSBAND WAS IN THE NAVY FOR ABOUT NINE YEARS BEFOR MARRIAGE; DURING THE MARRIAGE HE LEFT THE NAVY AND JOINED THE FOREIGN SERVICE WHICH ALLOWED HIM TO “PURCHASE” CREDITS FOR HIS TIME IN THE NAVY TO AUGMENT HIS FOREIGN SERVICE PENSION; THE PORTION OF HIS PENSION ATTRIBUTABLE TO THE PRE-MARRIAGE SERVICE IN THE NAVY IS MARITAL, NOT SEPARATE, PROPERTY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined the portion of the husband’s pension which stemmed from his pre-marriage service in the Navy was marital, not separate, property:

In this case, a couple used marital funds to augment the husband’s Foreign Service pension so that it included credit for his pre-marriage military service. The issue is whether the portion of the pension related to the pre-marriage military service is separate or marital property. We hold that the portion of the Foreign Service pension related to credit for that service is entirely marital property because marital funds were used to transform the credits into pension rights. * * *

John Szypula joined the Navy in 1987, when he was 22. He and Meredith Szypula were married nine years later. Two years later, in 1998, Mr. Szypula left the Navy. In general, members of the armed services become entitled to retirement pay only after they complete twenty years of service. When Mr. Szypula left the Navy, he was not entitled to military retirement benefits.

From 1998 to 2012, Mr. Szypula worked in the private sector. In 2012, he joined the Foreign Service and enrolled in the Foreign Service Pension System (FSPS). Veterans who join the Foreign Service—like Mr. Szypula—may add their years of military service to their FSPS pensions by making additional contributions for the years they served in the military. Mr. and Ms. Szypula took advantage of this benefit. From 2012 to 2018, a portion of Mr. Szypula’s earnings was withheld to enhance his Foreign Service pension by “buying back” his eleven years of Navy service, at a total cost of $9,158.00. As a result of those payments and his eleven years of Navy service, Mr. Szypula’s FSPS pension will vest sooner and be worth more. Szypula v Szypula, 2024 NY Slip Op 05177, CtApp 10-22-24

 

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FAMILY COURT’S RULING THAT A MASSACHUSETTS COURT WAS THE MORE CONVENIENT FORUM FOR THIS CUSTODY MATTER WAS NOT SUPPORTED BY EXPLICIT REFERENCE TO THE STATUTORY FACTORS OR ANY TESTIMONY OR SUBMISSIONS BY THE PARTIES; THE RECORD WAS THEREFORE INSUFFICIENT FOR APPELLATE REVIEW AND THE MATTER WAS REMITTED (THIRD DEPT).

The Third Department, reversing Family Court’s ruling that a Massachusetts court was the most convenient forum for this custody matter, determined Family Court’s failure to place on the record the factors it considered in making its ruling, combined with absence of any testimony, rendered the record inadequate for review, requiring remittal:

“Where, as here, a New York court has continuing jurisdiction over a custody matter, it may decline to exercise such jurisdiction if it determines that New York is an inconvenient forum and that another state is a more appropriate forum” … . A court is obliged to consider eight statutory factors in rendering that determination, and “[t]hose statutory factors include (1) ‘whether domestic violence or mistreatment or abuse of a child or sibling has occurred and is likely to continue in the future and which state could best protect the parties and the child,’ (2) the length of time the children have resided in another state, (3) the distance between the two states in question, (4) the relative financial circumstances of the parties, (5) any agreement among the parties regarding jurisdiction, (6) the nature and location of relevant evidence, including testimony from the children, (7) the ability of each state to decide the issue expeditiously and the procedures necessary to present the relevant evidence, and (8) the familiarity of each court with the relevant facts and issues” (… Domestic Relations Law § 76-f [2] [a]). Notably, the “determination depends on the specific issues to be decided in the pending litigation, and must involve consideration of all relevant factors, including those set forth in the statute” … .

… Family Court did not explicitly refer to the statutory factors during its conference with the Massachusetts court, which was essentially a back-and-forth between the judges on issues that included the language of the prior custody orders, the nature of the cases presently before them and the differences between New York and Massachusetts laws governing custody proceedings. The parties were not invited to, and did not, offer any testimony regarding the relative convenience of the two forums. Matter of Mark AA. v Susan BB., 2024 NY Slip Op 05173, Third Dept 10-17-24

Practice Point: Here Family Court did not make an adequate record to support its ruling that a Massachusetts court was the more convenient forum for this custody matter. There were no submissions by the parties and there was no testimony. The statutory factors were not explicitly referenced. The matter was remitted.

 

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FAMILY COURT ACT SECTION 1028 REQUIRES THAT THE COURT EXPEDITE A HEARING ON MOTHER’S PETITION TO HAVE HER CHILDREN RETURNED TO HER; HERE THE HEARING WAS STARTED WITHIN THREE DAYS OF THE APPLICATION AS REQUIRED BUT WAS THEREAFTER ADJOURNED SEVERAL TIMES OVER A PERIOD OF MONTHS, A VIOLATION OF THE STATUTE (FIRST DEPT).

The First Department, ordering Family Court to expedite a Family Court Act Section 1028 hearing on mother’s application to have her children returned to her, determined the adjournments of the continuation of the hearing over a period of months violated section 1028:

Family Court Act § 1028 “provides for an expedited hearing to determine whether a child who has been temporarily removed from a parent’s care and custody should be reunited with that parent pending the ultimate determination of the child protective proceeding” … . Upon an application of a parent whose child has been temporarily removed, “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

… [A]lthough the 1028 hearing commenced within three court days of the mother’s application, it did not proceed expeditiously. It is currently calendared with continued hearing dates through late October 2024, at which time the infant subject children will have spent more than half their lives in foster care. … The plain language of the statute requires expediency. Family Court Act § 1028 is distinguishable from other sections of article 10 wherein those sections call for hearings to be conducted within the Family Court’s discretion … . No such discretion is provided by the plain language of Family Court Act § 1028.

Under the specific time constraints detailed by the plain language of Family Court Act § 1028 and given the potential and persistent harms of family separation, the mother is entitled to prompt judicial review of the children’s removal “measured in hours and days, not weeks and months” … . Conducting this 1028 hearing over a period of 30 minutes of hearing time scheduled in March, four hours scheduled in April, three hours in May, and four hours in June cannot be deemed prompt or expeditious judicial review. Matter of Emmanuel C.F. (Patrice M. D. F.), 2024 NY Slip Op 04482, First Dept 9-19-24

Practice Point: Family Court does not have the discretion to keep adjourning a Family Court Act 1028 hearing on mother’s petition to have her children returned to her. Mother is entitled, by the terms of the statute, to an expedited hearing.

 

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THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT THE NEEDS OF THE CHILD AND THEREFORE DID NOT SUPPORT AWARDING SOLE CUSTODY TO FATHER; THE JUDGE SHOULD NOT HAVE LEFT IT UP TO THE PARTIES TO CRAFT A PARENTING-TIME SCHEDULE; A CHILD’S TESTIMONY IN A LINCOLN HEARING HAS NO INDEPENDENT EVIDENTIARY VALUE AND MUST BE KEPT CONFIDENTIAL (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the record did not support sole legal custody of the child by father, and the judge’s delegating the arrangement of parenting time for mother was improper. In addition, the Third Department noted that statements made by the child to the court in a Lincoln hearing must remain confidential:

… [T]he record is devoid of any indication that the parties are unable to effectively communicate to meet the child’s needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate … . As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order … . …

… [P]arenting time with a noncustodial parent is presumed to be in a child’s best interests, and Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare … . The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error requires reversal … .

… [W]e take this opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value …, and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . … [I]nformation shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, [but] such considerations must remain silent to ensure that the child’s right to confidentiality is protected” … . Matter of C.M. v Z.N., 2024 NY Slip Op 04427, Third Dept 9-12-24

Practice Point: Here the court noted there was no proof the parents could not communicate to meet the child’s needs and, therefore, the record did not support the award of sole custody to father.

Practice Point: A parenting-time schedule must be crafted by the judge and not left up to the agreement of the parties.

Practice Point: A child’s testimony in a Lincoln hearing has no independent evidentiary value and must not be revealed.

 

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THE USUAL PROHIBITIONS RE: VACATING ORDERS ISSUED OPON A PARTY’S DEFAULT DO NOT APPLY IN CHILD CUSTODY MATTERS; TO MODIFY CUSTODY, A FULL AND PLENARY HEARING IS NECESSARY; IF A PARTY DOES NOT APPEAR IN A MODIFICATION PROCEEDING, AN INQUEST SHOULD BE HELD TO CREATE A RECORD (SECOND DEPT).

The Second Department, reversing Family Court, noted that courts should be more willing to vacate orders issued upon a party’s default in child custody matters. Mother had defaulted and custody was modified awarding custody to father. Mother’s motion to vacate the modification order should have been granted:

Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . “Thus, the ‘general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody'” … .

Moreover, modification of an existing order of custody and parental access may be made only “‘upon a showing that there has been a subsequent change [in] circumstances such that modification is required to protect the best interests of the child'” … . “‘A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record'” … . “Generally, the court’s determination should be made only after a full and plenary hearing and inquiry, or, where a party failed to appear, after an inquest” … . Matter of Paez v Bambauer, 2024 NY Slip Op 04205, Second Dept 8-14-24

Practice Point: Child custody should not be modified without a full and plenary hearing, or an inquest (if a party fails to appear).

Practice Point: The rigorous rules re: vacating an order issued upon a party’s default are relaxed in child custody matters.

 

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FAMILY COURT DID NOT GIVE RESPONDENT ANY TIME TO PREPARE FOR THE CHILD SUPPORT HEARING AND INDICATED SHE HAD PREDETERMINED THE OUTCOME; ORDER REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the judge should have given respondent mother time to prepare for the child-support hearing. In addition, the Fourth Department noted the judge had improperly “predetermined” the case:

Family Court erred when it determined that his alleged violation of the child support order was willful and sentenced him to incarceration because the court did not afford respondent the right to a fair hearing … . Although “[n]o specific form of a hearing is required, . . . at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” … , and the court must provide “counsel reasonable opportunity to appear and present respondent’s evidence and arguments” … . Here, the court denied respondent’s assigned counsel an adjournment to allow her time to prepare for the hearing, for which she had no prior notice, and further prohibited her from conferring with respondent before the court attempted to swear in respondent to testify, and the court in so doing denied respondent his right to counsel and, thus, denied him a fair hearing, prior to sentencing him to a period of incarceration … .

Further, the record demonstrates that the court “had a predetermined outcome of the case in mind during the hearing” … and “took on the function and appearance of an advocate” … . Specifically, the court, inter alia, sua sponte transformed what was scheduled as an appearance for a “[r]eport” into a hearing, over the objection of respondent’s assigned counsel; exhorted that, “[i]f [respondent] wants to be cheeky with me, we’ll be cheeky”; advised the parties in advance that the hearing was only “going to take ten minutes”; sought to call respondent as a witness for the court’s own line of questioning regarding his employment and inquired of respondent’s counsel whether respondent would “like to answer my questions now or would he like to go to jail today”; and asked respondent if he had “clean underwear on,” thereby implying that he would be going directly to jail after the hearing. Matter of Onondaga County v Taylor, 2024 NY Slip Op 04040, Fourth Dept 7-26-24

Practice Point: Here the Family Court judge was reversed because she did not give respondent mother time to prepare for the child support hearing and indicated to respondent she had predetermined the outcome of the hearing.​

 

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THE CHILD DID NOT WANT PARENTAL ACCESS WITH FATHER; IT WAS AN ABUSE OF DISCRETION TO ORDER VISITATION WITH FATHER WITHOUT CONDUCTING AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined, under the circumstances of this case, it was an abuse of discretion to order father’s visitation with the child without an in camera interview of the child:

“Absent extraordinary circumstances, where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges” … . Although an appeal may be taken by the attorney for the child, “the child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full [and] fair opportunity to be heard” … . However, “[t]he decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court” … .

Under the circumstances of this case, the Family Court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the child’s position, as stated by the attorney for the child, regarding his fear and hatred of the father, his expressed concerns about the father’s lifestyle, and his strong wishes not to have parental access with the father … . The record reflects that the child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine what parental access would be in his best interests … . While the attorney for the child recounted the child’s objections on the record, in the absence of an in camera interview, the court did not have sufficient information to assess what parental access arrangement would be in the child’s best interests … . Matter of Dionis F. v Daniela Z., 2024 NY Slip Op 03822, Second Dept 7-17-24

Practice Point: Here the child objected to visitation with father. Visitation should not have been ordered without an in camera interview of the child.

 

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FAMILY COURT HAD THE AUTHORITY TO ORDER VISITATION WITH THE CHILDREN’S FORMER FOSTER MOTHER; A STRONG DISSENT ARGUED THE COURT DID NOT HAVE THE POWER TO ORDER VISITATION WITH A “LEGAL STRANGER” (FIRST DEPT). ​

The First Department, over an extensive and comprehensive dissent, determined Family Court properly allowed visitation with the children by their former foster mother. The dissent argued the court did not have the power to order visitation with the former foster mother, a “legal stranger:”

Commonly, visitation plans for children in foster care involve parents, grandparents or siblings, all of whom have standing to commence visitation proceedings. However, in this case, there was no visitation petition or proceeding before the court at the time of the permanency hearing. Rather,the court ordered visitation between the children and the former foster mother in order to advance the children’s “well-being” as it is required to do under Family Court Act § 1086. To accomplish that, the court gave special attention to the unique, undisputed circumstances of these children: (1) the children suffered from PTSD and other mental health issues following removal from their biological mother in 2016; (2) they each improved remarkably during the nearly six years they were cared for by the former foster mother; (3) removal from her care in December 2021 was traumatic for them; (4) at the time of the order, the children had only been in their current foster home for a few months; (5) ACS [Administration for Children’s Services] and the foster care agency had previously consented to and facilitated visits with the former foster mother for approximately two years; and (6) the children remained strongly bonded to her as the only adult who had been a consistent positive presence in their lives at the time of the 2023 permanency hearing that resulted in the order.

… [A]s Family Court explained on the record, “there is no legal path where the children end up in [the] care” of the former foster mother. However, the court expressed concern that discontinuing all contact with her at this time would be contrary to their well-being. The court noted that it was troubled “that we didn’t have more details [presented at the hearing] about the children’s therapy and medication” and that there was no testimony that “cutting off all contact with [the former foster mother] . . . is therapeutically beneficial.” Under these circumstances, Family Court’s continuation of visitation with the former foster mother was an appropriate exercise of its authority under Family Court Act § 1089, was tailored to the particular circumstances of these children, and was in keeping with the legislative goal of ensuring foster children’s well-being. Matter of AL.C., 2024 NY Slip Op 03799, First Dept 7-11-24

Practice Point: Here Family Court properly ordered visitation with the children by their former foster mother, based primarily upon the children’s improvement while in her care and the strong bond between her and the children. The dissent argued the court did not have the authority to order visitation with a “legal stranger.”

 

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MOTHER BROUGHT A PETITION TO MODIFY CUSTODY AND ALLEGED SHE DID NOT CONSENT TO THE STIPULATION UNDERLYING THE EXISTING CUSTODY ORDER; BECAUSE THE STIPULATION WAS NOT IN THE RECORD AND ITS TERMS WERE NOT IN THE CUSTODY ORDER, A HEARING WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Family Court, determined a hearing was required after mother alleged in her petition to modify custody she did not consent to the stipulation underlying the custody order. The stipulation was not part of the record and the custody order did not recount the terms of the agreement:

Pursuant to CPLR 2104, an agreement between parties is binding against them where, as here, it was reduced to the form of an order and entered. Since “settlement agreements must abide by the principles of contract law, ‘for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent'” … . CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation … . Here, in light of the mother’s averment that she did not consent to the terms of the custody order, the fact that the terms of the settlement were not placed on the record, and the fact that there was no writing subscribed by the parties, there is an unresolved issue as to whether there was a manifestation of mutual assent to the terms set forth in the custody order. Matter of Izzo v Salzarulo, 2024 NY Slip Op 03751, Second Dept 7-11-24

Practice Point: If a custody order is based upon a stipulation which was not reduced to writing and the terms of the stipulation are not in the order, the order is subject to collateral litigation, here based on mother’s allegation she did not agree to the terms.

 

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EVIDENCE THE CHILD HAD RECANTED THE CHILD’S TESTIMONY THAT FATHER SEXUALLY ABUSED THE CHILD WAS VAGUE AND WAS NOT SUFFICIENT TO REBUT THE ABUSE FINDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the recantation evidence did rebut the prima facie evidence that father had sexually abused the child:

… [P]etitioner established by a preponderance of the evidence that the father sexually abused the child. The child’s testimony during the fact-finding hearing was consistent and detailed, and any minor inconsistencies “did not render such testimony unworthy of belief” … . The child’s testimony was sufficient to establish a finding of sexual abuse pursuant to Family Court Act § 1046(b)(i) … .

At the reopened fact-finding hearing, the mother of the father’s other children (hereinafter the witness) testified that the child recanted her allegations of abuse. The child did not testify at the reopened fact-finding hearing. “[A] child’s recantation of allegations of abuse does not necessarily require [the] Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children” … . “Rather, recantation of a party’s initial statement simply creates a credibility issue which the trial court must resolve” … . Here, even assuming that the witness’s testimony was credible, it was insufficient to warrant dismissal of the petition. The witness testified that she overheard the child telling other children that the child missed the father. After the witness confronted the child, the child told the witness that “she wished that she never lied . . . by saying that [the father] did those things.” The witness did not specify what “things” the child was referring to. During cross-examination, the witness testified that immediately after she asked the child “what did she mean by she lied,” the child indicated that “she never said that.” The witness also testified on cross-examination that she had previously confronted the child about the allegations against the father, and the child told the witness that “she was sure . . . that these things took place.” The alleged recantation as described by the witness was vague, and the witness’s testimony was insufficient to rebut the finding of abuse … . Matter of Kenyana D. (Kenneth D.), 2024 NY Slip Op 03746, Second Dept 7-10-24

Practice Point: Here the evidence the child had recanted the child’s testimony that father had abused the child was too vague to rebut the abuse finding.

 

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