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Untimely Initial Appearance Does Not Mandate Dismissal as Long as the Right to a Speedy Fact-Finding Hearing Is Not Violated

The Third Department determined the failure to conduct an initial appearance within ten days of the filing of the juvenile delinquency petition (charging the equivalent of assault and criminal possession of a weapon) did not require dismissal of the petition. The court attempted to conduct the initial appearance within ten days but respondent failed to appear and no timeliness objection was raised when the initial appearance was conducted five days later.  The Third Department explained that the ten-day requirement is flexible, but the requirement that a fact-finding hearing be conducted within 60 days of the initial appearance is mandatory:

Respondent first contends that dismissal of the June 2013 petition is required because Family Court failed to conduct a timely initial appearance. Because he was not detained, Family Ct Act § 320.2 (1) required that the initial appearance occur “as soon as practicable and, absent good cause shown, within [10] days after” the filing of the petition. The initial appearance, “like the arraignment of an adult charged with a crime, is the process by which the court obtains jurisdiction over the minor, determines if detention is warranted, and sets the dates for further proceedings” (… see Family Ct Act § 320.4). Dismissal is appropriate where a respondent is deprived of his or her right to a speedy fact-finding hearing, a hearing that must occur “not more than [60] days after the conclusion of the initial appearance” if he or she is not confined (Family Ct Act § 340.1 [2]; see Family Ct Act §§ 310.2, 332.1 [8]). A “similar protected status” is not afforded to the initial appearance itself, although “dismissal without prejudice may be an appropriate remedy” if it is not held in a timely manner … . To put it succinctly, dismissal is not mandated in the wake of an untimely initial appearance so long as respondent’s right to a speedy fact-finding hearing is not violated … . Matter of Daniel B., 2015 NY Slip Op 04698, 3rd Dept 6-4-15

 

Grandparents Did Not Have Standing to Bring a Petition for Visitation

The Second Department determined Family Court properly dismissed the grandparents’ petition for visitation with the grandchildren without a hearing. Family Court properly determined the grandparents did not have standing to bring the petition because no triable issues of fact were raised in the submitted papers. The standing question is determined by applying equitable principles re: the nature of the grandparents’ relationship with the children and the nature and basis of the parents’ objection to visitation:

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” … . “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” … .

“In considering whether a grandparent has standing to petition for visitation based upon circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72[1]), an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” … . Additionally, the court must consider ” the nature and basis of the parents’ objection to visitation'” … . “A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers” … .

Here, the Family Court properly denied the grandparents’ petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents … . Matter of Moskowitz v Moskowitz, 2015 NY Slip Op 04490, 2nd Dept 5-27-15

 

Non-Parent Petitioner, the “Nongestational” Spouse In a Same-Sex Marriage, Did Not Have Standing to Seek Custody

Family Court properly dismissed a nonparent’s action for custody for lack of standing.  [Apparently (not spelled out) petitioner is the spouse of the biological parent of the child in a same-sex marriage.] … “[P]etitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody”. Petitioner did not show “the parent has relinquished [his/her] right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances” … . In addition, petitioner, as the nongestational spouse in a same-sex marriage, could not establish she was a “parent” within the meaning of Family Court Act 417 and Domestic Relations Law 24. The statutes refer to a biological relationship, not legal status. Matter of Paczkowski v Paczkowski, 2015 NY Slip Op 04325, 2nd Dept 5-20-15

 

No Substantial Basis in the Record for Custody Determination

After the parents’ deaths the maternal and paternal grandmothers petitioned for custody of the child. The Second Department reversed Family Court, which had awarded custody to the maternal grandmother after a three-day hearing, and granted custody to the paternal grandmother, finding no sound and substantial basis for Family Court’s ruling in the record:

The essential consideration in any custody dispute is the best interests of the child … . In determining the best interests of the child, the court must evaluate the totality of the circumstances… . This Court’s authority in custody determinations is as broad as that of the hearing court …, and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we “would be seriously remiss if, simply in deference to the finding of a Trial Judge,” we allowed a custody determination to stand where it lacks a sound and substantial basis in the record … .  Matter of Iams v Estate of Iams, 2013 NY Slip Op 03482, 2nd Dept, 5-15-13

 

 

Single Act of Excessive Corporal Punishment Justified Neglect and Derivative Neglect Findings/Single Act of Domestic Violence Did Not Justify Neglect and Derivative Neglect Findings—No Proof the Three-Month-Old Child Was Aware of the Domestic-Violence Incident

The Second Department determined a single act of excessive corporal punishment (slamming to the floor and choking) justified a finding of neglect and derivative neglect.  However a single act of domestic violence did not justify the same findings because there was no proof the three-month-old child was aware of the domestic violence.

[Re: corporal punishment, the court wrote:] “While parents have the right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare, the use of excessive corporal punishment constitutes neglect … . A single incident of excessive corporal punishment may suffice to sustain a finding of neglect…” .

[Re: witnessing domestic violence, the court wrote]: “While domestic violence may be a permissible basis upon which to make a finding of neglect, [n]ot every child exposed to domestic violence is at risk of impairment'” … . Here, although there was testimony that the father engaged in an act of domestic violence against the mother while [the child], then three months old, was somewhere in the room, there is no evidence that the child saw, or was aware of, what happened, or that his emotional condition was impaired or placed in imminent danger of impairment by it …”. Matter of Dalia G. (Frank B.), 2015 NY Slip Op 04127, 2nd Dept 5-13-15

 

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Mother’s Petition to Relocate Should Not Have Been Denied—Analytical Criteria Described

The Second Department determined Family Court should not have denied mother’s petition to relocate. The analytical criteria were described as: “When reviewing a custodial parent’s request for permission to relocate, the court’s primary focus must be on the best interests of the child … . Although each custodial parent’s request for relocation must be decided on its own merits, the factors to be considered include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the children and each parent, the impact of the move on the quantity and quality of the children’s future contact with the noncustodial parent, the degree to which the lives of the custodial parent and the children may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the children through suitable visitation arrangements … . In relocation proceedings, this [the appellate court’s] authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record …”. [quotations omitted] Matter of DeCillis v DeCillis, 2015 NY Slip Op 04126, 2nd Dept 5-13-15

 

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County Department of Human Services Was Entitled to a Hearing On Whether It Should Be Held In Contempt for Failing to Place a Person In Need of Supervision In Foster Care

The Fourth Department determined the County Department of Human Services should not have been held in contempt without a hearing for failing to return the respondent (a person in need of supervision) to foster care.  The Department had raised a defense, i.e., the Department had tried but was unable to place the respondent, and was therefore entitled to a hearing. Matter of Andrew B., 2015 NY Slip Op 03999, 4th Dept 5-8-15

 

Uncle Was Properly Found to Be a “Person Legally Responsible” for the Abused Child—He Was Therefore a Proper “Respondent” in a Child Abuse/Neglect Proceeding

The Court of Appeals, over a three-judge dissent, determined the abused child’s uncle, as a person legally responsible (PLR) for the child’s care, was a proper “respondent” in the child abuse/neglect proceeding.  The uncle argued he was not a PLR for the abused child and Family Court therefore did not have jurisdiction over the abuse/neglect proceeding against him:

“…[T]he common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents” … . We held that deciding whether “a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” … . We listed factors to be considered when determining who is a PLR, which include (1) “the frequency and nature of the contact,” (2) “the nature and extent of the control exercised by the respondent over the child’s environment,” (3) “the duration of the respondent’s contact with the child,” and (4) “the respondent’s relationship to the child’s parents” … . Matter of Trenasia J. (Frank J.), 2015 NY Slip Op 03765, CtApp 5-7-15

 

Plaintiff Wife Not Entitled to Distributive Award of Husband’s Separate Property Which Was Not Shown to Have Appreciated During the Marriage

The Second Department explained the equitable distribution principles applied to separate property which has not been demonstrated to have appreciated during marriage.

Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was separate property … . Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, “except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236[B][1][d][3]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant’s separate property, appreciated in value during the parties’ marriage … . Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC. Clark v Clark, 2014 NY Slip Op 03224, 2nd Dept 5-7-14

Similar issue and result in Turco v Turco, 2014 NY Slip Op 03257, 2nd Dept 5-7-14

 

Family Court Should Not Have Denied Nonparent’s Petition for Custody of a Child, and Awarded Custody to the Father and Mother, in the Absence of an Evidentiary Hearing

The Third Department determined there were questions of fact whether non-parent petitioner could show extraordinary circumstances warranting the award of custody of a child petitioner cared for for years.  Family Court had awarded custody to the father and mother without a hearing:

Under settled 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, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … , and the nonparent bears the “heavy burden of establishing extraordinary circumstances to overcome the [parent’s] superior right to custody” … . “The pertinent factors to be considered in determining whether extraordinary circumstances exist include 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” …, as well as “the child’s psychological bonding and attachments, the prior disruption of the parent[‘s] custody, separation from siblings and potential harm to the child” and other relevant factors … . A “consent order, standing alone, does not constitute a judicial finding [or an admission] of . . . extraordinary circumstances” … . However, we have stressed that, “with few exceptions, an evidentiary hearing is necessary to determine whether extraordinary circumstances exist” … . Matter of Liz WW. v Shakeria XX., 2015 NY Slip Op 03888, 3rd Dept 5-7-15

 

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