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Family Court Has the Statutory Authority to Impose a Jail Term for Willful Violation of a Child Support Obligations

Reversing the support magistrate, the Second Department determined Family Court does have the authority to impose a jail term for willful violation of child support obligations:

The Family Court is a court of limited jurisdiction and cannot exercise powers beyond those which are granted to it by statute … . However, Family Court Act § 451(1) specifically provides the Family Court with continuing plenary and supervisory jurisdiction over a support proceeding until its judgment is completely satisfied … .

Family Court Act § 460(1)(e) provides that, where a party has defaulted in paying any sum of money due as required by an order directing such payment, the court shall make an order directing the entry of a judgment for the amount of child support arrears, “unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears.” However, Family Court Act § 460(3) also makes clear that the entry of a money judgment is a form of relief mandated “in addition to any and every other remedy which may be provided under the law including, but not limited to, the remedies provided under the provisions of section four hundred fifty-four of this act” (Family Ct Act § 460[3]). The remedies provided by Family Court Act § 454 include a provision authorizing the court to commit a respondent to jail for a term not exceeding six months upon a finding that the respondent has willfully failed to obey any lawful order of support (see Family Ct Act § 454[3][a]). Matter of Damadeo v Keller, 2015 NY Slip Op 07267, 2nd Dept 10-7-15

 

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Controverted Custody-Related Issues Cannot Be Decided Based Upon “In Chambers” Conferences, A Full Hearing Is Required

The Second Department determined a new trial on all custody issues was necessary because Supreme Court refused to allow testimony on certain controverted allegations (parental alienation and use of corporal punishment). Supreme Court erroneously relied upon extensive “in camera” discussions which, Supreme Court determined, had revealed the issues to be “sporadic and inconsequential.”  The Second Department noted that all controverted custody issues should be decided only after the issues are addressed in a hearing:

” ‘[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing’ … . Here, the Supreme Court, after holding ‘extensive’ in camera discussions with counsel on the issues of excessive corporal punishment and parental alienation, refused to allow testimony on these controverted issues, stating that they were ‘sporadic and inconsequential.’ Instead, the Supreme Court directed that only ‘positive’ aspects of the parties’ parenting be presented on the record. This was error, since the court cannot base a significant portion of its decision on off-the-record conferences …”. Minjin Lee v Jianchuang Xu, 2015 NY Slip Op 06784, 2nd Dept 9-16-15

 

Order of Protection Reversed–Family Court Did Not Have Subject Matter Jurisdiction—Party Ordered to Stay Away Was Not Related to, a Member of the Household of, or in an Intimate Relationship With, the Subject of the Order of Protection

The Second Department determined Family Court did not have subject matter jurisdiction pursuant to Family Court Act 812 and could not, therefore, issue an order of protection to a person, Kirton, who was not a party to a family offense proceeding. Family Court’s jurisdiction in a family offense proceeding is limited to certain acts which occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct Act § 812[1]…). [M]embers of the same family or household include, among others, persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time… ” [internal quotation marks omitted] Here the party to whom the order of protection was issued, Kirton, was not related in any way to, was not a member of the household of, and did not have an intimate relationship with the petitioner, Cambre (from whom Kirton was ordered to stay away):

The Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute … . Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct Act § 812[1]…). “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … .

Here, Kirton and Cambre have no direct relationship … . The record … demonstrates that they met for the first time during the course of the court proceedings, and have no ongoing relationship … . Accordingly, the undisputed facts establish that there is no “intimate relationship” between the parties within the meaning of Family Court Act § 812(1)(e)… . Consequently, since the parties do not have an “intimate relationship” within the meaning of Family Court Act § 812 (1)(e), the Family Court lacked subject matter jurisdiction, the order of protection must be reversed, the petition denied, and the proceeding dismissed. Matter of Cambre v Kirton, 2015 NY Slip Op 06242, 2nd Dept 7-22-15 

 

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Children’s Out-of-Court Statements Sufficiently Corroborated to Support Neglect Finding

In affirming Family Court’s neglect finding, the Second Department noted that the children’s out-of-court statements, if sufficiently corroborated, will support a finding of neglect. Here the children’s statements were cross-corroborated among them, and were corroborated by the testimony of a school nurse and caseworkers:

In a child protective proceeding, unsworn out-of-court statements of the subject child may be received and, if properly corroborated, will support a finding of abuse or neglect … . The Family Court has considerable discretion in deciding whether a child’s out-of-court statement has been reliably corroborated and whether the record as a whole supports a finding of neglect … . Moreover, where the Family Court is primarily confronted with issues of credibility, its factual findings must be accorded considerable deference on appeal … .

Here, a preponderance of the evidence supported the Family Court’s finding that the father neglected the child Tapharye C. by inflicting excessive corporal punishment on him … . Contrary to the father’s contention, out-of-court statements by the subject children were sufficiently corroborated by the testimony of a school nurse and the caseworkers employed by the Suffolk County Department of Social Services, who had also observed the evidence of physical injury sustained by Tapharye, as well as by the children’s own cross-corroborating statements … . Matter of Hayden C. (Tafari C.), 2015 NY Slip Op 06241, 2nd Dept 7-22-15

 

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Failure to Timely Submit a Proposed Judgment of Divorce Did Not Constitute Abandonment of the Divorce Action/Decedent’s Death Before the Judgment of Divorce Was Entered Did Not Abate the Divorce Action/The Stipulation of Settlement (Re: the Divorce), In Which the Parties Agreed They Were No Longer the Beneficiaries of Each Other’s Wills, Was Enforceable

Decedent and her husband had entered a stipulation of settlement and all matters related to their divorce had been settled at the time of decedent’s death. Only the submission of the proposed judgment of divorce remained. The stipulation of settlement included the parties’ agreement that they were no longer the beneficiaries of each other’s wills. Decedent’s husband sought letters testamentary and a share in the estate, arguing that, because the proposed judgment of divorce was not submitted by decedent, decedent had abandoned the divorce action. Surrogate’s court agreed the divorce action had been abandoned and found there was a question of fact whether the stipulation of settlement was enforceable.  The Second Department reversed, finding that the divorce action was not abandoned and the stipulation of settlement was enforceable. Decedent’s husband, therefore, had no right to share in decedent’s estate:

Contrary to the Surrogate Court’s determination, the decedent did not abandon the divorce action pursuant to 22 NYCRR 202.48 by failing to timely submit a proposed judgment within 60 days of the Supreme Court’s verbal direction. Since the 60-day time period to submit a proposed judgment under 22 NYCRR 202.48(a) does not run until “after the signing and filing of the decision directing that the [judgment] be settled or submitted,” and the court’s direction was not reduced to a written decision, there was no violation of that rule here … . Furthermore, since all issues in the divorce action had been resolved at the time of the decedent’s death, the Supreme Court had adjudged that the decedent was entitled to a divorce, and nothing remained to be done except the ministerial entry of a judgment of divorce, the decedent’s death did not abate the divorce action … . Under these circumstances “the parties’ substantive rights should be determined as if the judgment of divorce had been entered immediately as of the time nothing remained to be done except enter a judgment” …, and the stipulation of settlement is thus enforceable as a matter of law. Moreover, since the stipulation of settlement contained language which “clearly and unequivocally manifests an intent on the part of the spouses that they are no longer beneficiaries under each other’s wills” …, the stipulation of settlement revoked any testamentary disposition in Carmine’s favor under EPTL 3-4.3, regardless of whether it was ultimately followed by a formal dissolution of the marriage … . Matter of Rivera, 2015 NY Slip Op 06247, 2nd Dept 7-22-15

 

Ruling that Subject Child Could Not Visit Father in the Presence of Father’s Other Children Is Against Established Policy and Was Not Supported by an Adequate Record—Matter Sent Back for Development of Evidence

Although the custody modification awarding sole custody to mother was upheld by the Third Department, the court was troubled by the requirement that father’s other children could not be present during father’s parenting time with the subject child.  The restriction goes against the general policy that bonds with siblings should be strengthened and the record was not sufficient to warrant the ruling.  The matter was sent back for further development of the evidence:

… [T]here is a dearth of record evidence supporting the provision limiting all parenting time with the father to periods when the child’s older half siblings are not present. Considering the father’s testimony upon cross-examination admitting to some prior unspecified incidents apparently involving the corporal punishment of his older children, meaningful support was not wholly lacking. These prior incidents had resulted in the imposition of supervised visitation with the older children. However, there was no evidence produced to clarify or explain any detail or establish any of the circumstances underlying these admissions. No documents or other proof or testimony was offered or entered. The father testified that the restrictions that had previously been imposed had expired at the time of the hearing. Nothing more was revealed, and the underlying facts were left wholly undeveloped.

Despite the argument by the attorney for the child that limiting the father’s time with this child to periods when the half siblings are not present will protect the child by allowing the father to focus on the child exclusively, the provision is troubling. The law strongly favors the development and encouragement of sibling bonds … . The father’s apparent history of inappropriate corporal punishment certainly raises issues of significant concern. Nonetheless, the issue is too poorly developed in the record to support the argument advanced by the attorney for the child.  Matter of Demers v McLear, 2015 NY Slip Op 06178, 3rd Dept 7-16-15

 

Custody Properly Awarded to Non-Parents—Criteria Explained

The Second Department affirmed Family Court’s award of custody to non-parents, explaining the relevant criteria:

In a custody proceeding between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances … . The burden is on the nonparent to prove the existence of extraordinary circumstances … . Where extraordinary circumstances are found to exist, the court must then consider the best interests of the child in awarding custody … .

Here, the Family Court properly determined that the nonparent petitioners, Yasmin Culberson and Walter Culberson, sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother’s prolonged separation from the subject child and lack of significant involvement in the child’s life for a period of time, the mother’s failure to contribute to the child’s financial support, and the strong emotional bond between the child and the nonparent petitioners … . Moreover, the Family Court’s determination that an award of custody to the nonparent petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record … . Matter of Culberson v Fisher, 2015 NY Slip Op 06144, 2nd Dept 7-15-15

The Third Department determined grandmother demonstrated extraordinary circumstance justifying the award of custody to her with visiting rights for the parents. The court explained the relevant analytical criteria:

“It is well settled that 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, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … . “The burden of proving such extraordinary circumstances rests with the nonparent seeking custody and, if established, the controlling consideration in determining custody is the best interests of the child” … . Proof regarding extraordinary circumstances may include, among other things, that “the parent has neglected ‘to maintain substantial, repeated and continuous contact with’ the child[] or make plans for [her] future” …. . Matter of Yandon v Boisvert, 2015 NY Slip Op 06177, 3rd Dept 7-16-15

 

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Forcing Appellant to Proceed Without Counsel in a Family Court Act Article 8 Action Required Reversal of Order of Protection

The Second Department held that forcing appellant proceed without counsel (because he did not complete the paperwork for the assignment of counsel) deprived him of his fundamental right to counsel in a Family Court Act Article 8 action. The order of protection was reversed and matter was remitted for a new hearing either with counsel or after appellant’s knowing voluntary waiver of his right to counsel:

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]…), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily … . To determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a “searching inquiry” to ensure that the waiver is unequivocal, voluntary, and intelligent … . A waiver is valid where the record reveals that the party was aware of the dangers and disadvantages of proceeding without counsel … . The deprivation of a party’s right to counsel, as guaranteed by Family Court Act § 262, requires reversal, without regard to the merits of the unrepresented party’s position … .

Here, the record is clear that the appellant did not wish to proceed pro se, but was forced to do so in light of his alleged inability to produce the necessary paperwork in order to be assigned counsel … . The deprivation of the appellant’s fundamental right to counsel requires reversal, without regard to the merits of his position, especially where, as here, the record demonstrates that the appellant did not have a basic understanding of court proceedings … . Matter of Nixon v Christian, 2015 NY Slip Op 06150, 2nd Dept 7-15-15

 

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Substantial Evidence Did Not Support Maltreatment Report

The Third Department determined the Commissioner of Children and Family Services should have granted the petition to expunge and amend as unfounded a maltreatment report maintained by the Central Register of Child Abuse and Maltreatment. Although the denial could properly be based upon hearsay and double hearsay, the maltreatment finding was not based upon substantial evidence:

To establish maltreatment, the agency was required to show by a fair preponderance of the evidence that the physical, mental or emotional condition of the child had been impaired or was in imminent danger of becoming impaired because of a failure by petitioner to exercise a minimum degree of care in providing the child with appropriate supervision or guardianship … . Our review is limited to assessing whether the determination is supported by substantial evidence, meaning “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”… .

Here, the proof introduced against petitioner consisted solely of the investigation progress notes and a Family Court order from 1998 that adjudicated petitioner to have neglected another son. The progress notes were prepared by a child protective services caseworker and include her accounts of interviews with numerous individuals, including the child and his therapist, that led her to the conclusion that maltreatment had occurred. Neither the caseworker nor her interview subjects testified before the Administrative Law Judge, however, and the progress notes reflect that the child bore no marks or evident injuries as a result of the maltreatment. In contrast to this meager evidentiary showing, petitioner and his wife both testified and denied that any maltreatment had occurred. Petitioner also asserted, without contradiction, that he was physically incapable of engaging in some of the claimed maltreatment, such as lifting the 110-pound child with one hand. His wife further stated that the child admitted to her that he was lying about the alleged maltreatment. The record suggests a reason why the child might be prompted to lie, as a bitter custody dispute between petitioner and the child’s mother has led to numerous unfounded reports of mistreatment regarding petitioner.

Like any administrative determination, one made after an expungement hearing may be based solely upon hearsay evidence — or even double hearsay evidence — in the appropriate case … . As such, “our concern is not the hearsay nature of the evidence, but whether it is sufficiently relevant and probative to constitute substantial evidence” … . Hearsay evidence will not satisfy that standard if the facts it purportedly establishes are “seriously controverted” … . Serious controversy is precisely what surrounds the hearsay evidence here, given the hearing testimony that the maltreatment had not occurred and that the child had recanted his claims, the proof that motivations may have existed for the child to fabricate the maltreatment, and the total lack of physical evidence suggesting that it occurred. We accordingly agree with petitioner that substantial evidence does not support the challenged determination, which must be annulled as a result … . Matter of Gerald HH. v Carrion, 2015 NY Slip Op 05982, 3rd Dept 7-9-15

 

Court Cannot Condition Future Visitation On Parent’s Participation in Counseling or Treatment

The Second Department noted that a court may not condition future visitation upon a parent’s participation in counseling or treatment because such a condition effectively removes control over visitation from the court:

A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]…). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order … .

However, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights” … . The rationale underlying this rule is that “a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights,” a determination that is properly made by the court … . Lajqi v Lajqi, 2015 NY Slip Op 05916, 2nd Dept 7-8-15

 

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