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Family Court Should Not Have Directed that Visitation With the Father Be Only to the Extent Agreed Upon by the Parties Without Holding a Hearing—There Is a Presumption Visitation with a Noncustodial Parent Is In the Best Interests of the Child, Even Where the Noncustodial Parent Is Incarcerated—Absent Exceptional Circumstances, Visitation with a Noncustodial Parent Is Always Appropriate

The Second Department determined Family Court should not have held that father’s visitation with the children should only be to the extent agreed upon by the parties without first conducting a hearing to determine what visitation arrangement was in the best interests of the children.  The Second Department noted that (1) absent exceptional circumstances visitation with a noncustodial parent is always appropriate, (2) visitation with a noncustodial parent is presumed to be in the best interests of the child, even when the father is incarcerated, and (3) the presumption must be rebutted by a preponderance of the evidence:

Family Court erred in, without a hearing, awarding the father visitation only to the extent as agreed upon by the parties. “Absent exceptional circumstances, some form of visitation with the noncustodial parent is always appropriate” … . Visitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated … . That presumption may be rebutted, however, by demonstrating, by a preponderance of the evidence, that “under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited” … . Here, the Family Court did not possess adequate relevant information to enable it to make an informed determination as to the children’s best interests so as to render a hearing unnecessary on the issue of the father’s visitation. Matter of Bell v Mays, 2015 NY Slip Op 03524, 2nd Dept 4-29-15

 

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Family Court Did Not Follow Statutory Procedure Before Ruling the New York Court Did Not Have Subject Matter Jurisdiction in a Proceeding to Modify a New Jersey Custody and Visitation Order—A Proceeding to Modify the Custody and Visitation Order Was Pending In New Jersey at the Time the New York Proceeding Was Brought

The Second Department determined Family Court failed to follow statutory procedure when it determined the New York court did not have subject matter jurisdiction over a proceeding to modify a New Jersey custody and visitation order.  At the time the New York proceeding was brought there was a pending proceeding in New Jersey to modify the custody and visitation order. Before determining the jurisdiction issue, Family Court was required to (but did not) make a record of its communications with the New Jersey court, provide the record to the parties, and give the parties the opportunity to present facts and legal arguments (Domestic Relations Law 75-i, 76-b, 76-e). The case was remanded for that purpose:

A court of this state may not modify a child custody determination made by a court of another state “unless . . . [t]he court of the other state determines it no longer has exclusive, continuing jurisdiction . . . or that a court of this state would be a more convenient forum” (Domestic Relations Law § 76-b[1]…). ” Where a different state possesses exclusive, continuing jurisdiction, New York cannot take jurisdiction unless the foreign state declines, even [if] the parties clearly no longer have a significant connection with that state'” … .

Furthermore, “a court of this state may not exercise its jurisdiction . . . if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum” (Domestic Relations Law § 76-e[1]). “If the court [of this state] determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with [Domestic Relations Law article 5-A], the court of this state shall stay its proceeding and communicate with the court of the other state” (Domestic Relations Law § 76-e[2]; see Domestic Relations Law § 75-i[1]). “If the court of the state having jurisdiction substantially in accordance with this article does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding” (Domestic Relations Law § 76-e[2]).

With limited exceptions not applicable here, “a record must be made” of the communication between the two courts and “[t]he parties must be informed promptly of the communication and granted access to the record” (Domestic Relations Law § 75-i[4]). Furthermore, “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75-i[2]). Matter of Frankel v Frankel, 2015 NY Slip Op 03530, 2nd Dept 4-29-15

 

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Family Court Should Not Have Denied Child’s Motion for the Issuance of an Order Making Specific Findings that Would Allow Her to Petition for Special Juvenile Immigrant Status

The Second Department determined Family Court should not have denied the juvenile’s motion for issuance of an order making specific findings that would allow her to petition the United State Citizenship and Immigration Service (USCIS) for special immigrant juvenile status (SIJS). The court determined the record supported the child’s motion and noted that the Federal government retains control of the immigration determination of whether the child receives SIJS, which cannot be decided by Family Court. The case was remitted to Family Court for a hearing to determine whether it is in the child’s best interests to be returned to El Salvador, and for a new determination on the child’s motion. The Second Department explained the relevant law:

A child may request that the Family Court issue an order making certain specific findings that will enable him or her to petition the USCIS, an agency within the United States Department of Homeland Security, for SIJS … . The findings required to support a petition for SIJS include: (1) the child is under 21 years of age; (2) the child is unmarried; (3) the child is dependent upon a juvenile court or legally committed to, or placed under the custody of, an agency or department of the State or an individual appointed by a State or juvenile court; (4) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis; and (5) it is not in the child’s best interests to be returned to his or her country of nationality or country of last habitual residence (see 8 USC § 1101[a][27][J][i], [ii]; 8 CFR 204.11[c]…). Once those specific findings have been issued, the eligible child may seek the consent of “the Secretary of Homeland Security” to receive special immigrant juvenile status (8 USC § 1101[a][27][J][iii]…).

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual . . . appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, we find that the record, which includes a detailed affidavit from the child, fully supports her contention that reunification with her father is not a viable option, due to abandonment … . Matter of Pineda v Diaz, 2015 NY Slip Op 03540, 1st Dept 4-29-15

 

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Court Has Discretion to Grant a Recess to Allow a Conference Between a Lawyer and a Testifying Witness

In a decision affirming Family Court’s findings in a juvenile delinquency proceeding, the Second Department noted that a judge has the discretion to recess the proceedings to allow a conference between a lawyer and the witness:

“[T]he decision to grant a recess and to allow a conference between a lawyer and a testifying witness falls within the broad discretion allowed a trial court in its management of a trial” … . Contrary to the appellant’s contention, the fact-finding court providently exercised its discretion in granting the presentment agency’s application for a mid-testimony conference with a testifying witness … . Matter of Isaiah D., 2015 NY Slip Op 03528, 2nd Dept 4-29-15

 

Under the Facts, Family Court Should Not Have Terminated Father’s Parental Rights—No Showing that Termination Would Increase Likelihood of Adoption

The Second Department determined Family Court should not have terminated father’s parental rights. Father had made progress in strengthening his bond with his children and there was no showing terminating his rights would increase the likelihood of adoption:

The record indicates that the father made sufficient progress toward strengthening his relationship with the subject children … . Furthermore, the older child is residing at a residential treatment center for children with emotional and behavioral issues, and there is no indication that he has any prospects for foster placement or adoption. Although the younger child resides with a foster family, the foster parents have indicated that they do not wish to adopt him out of concern that they could not handle him. Thus, on this record, there is no indication that termination of the father’s parental rights would increase the subject children’s opportunities for adoptive placement … .

Under these circumstances, the Family Court’s termination of the father’s parental rights was not in the best interests of the children and, instead, the court should have suspended judgment for one year… . Matter of Javon J. (Antoine J.), 2015 NY Slip Op 03363, 2nd Dept 4-22-15

 

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Defendant Alleged a Possible Defense to His Failure to Comply with an Order that He Pay Temporary Maintenance and Child Support (Inability to Work Due to Medical Problems)—Hearing Was Required Before a Civil Contempt Finding Could Be Made

The Second Department determined Supreme Court should not have held defendant in civil contempt for his failure to comply with an order that he pay temporary maintenance and child support without first conducting a hearing. The defendant’s opposition papers raised a factual dispute about whether there was a defense (inability to work due to medical problems).  In the context of a civil contempt proceeding, a question of fact about the existence a defense requires a hearing:

To prevail on a motion to hold a party in civil contempt, the movant is required to prove by clear and convincing evidence ” (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct'” … . “Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant’s showing, or to offer evidence of a defense, such as an inability to comply with the order” … . A hearing is required “if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense” … . Lundgren v Lundgren, 2015 NY Slip Op 03135, 2nd Dept 4-15-15

 

Grandfather Did Not Have Standing to Seek Visitation With Grandchildren—Analytical Criteria Explained

The Second Department determined Family Court properly concluded that the grandfather did not have standing to seek visitation with the grandchildren.  The analytical criteria include the nature and extent of the grandparent-grandchild relationship and the nature and the basis for the parents’ objection to visitation.  Here the grandfather failed to demonstrate mother frustrated his attempts to visit the grandchildren. Mother objected only to the grandfather being accompanied by the grandmother during visits:

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]), “the essential components to the inquiry are the nature and extent of the grandparent-grandchild relationship’ and the nature and basis of the parents’ objection to visitation'” … . “In cases where such a relationship has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court’s intervention'” … . ” The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances'” … .

Here, the Family Court properly determined that the grandfather lacked standing to seek visitation with the grandchildren … . The grandfather failed to demonstrate that the mother frustrated his visitation with the grandchildren … . Indeed, it is undisputed that the mother had asked the grandfather to visit with the grandchildren, and that he only refused because the mother did not want the grandmother to accompany him. Matter of Troiano v Marotta, 2015 NY Slip Op 02979, 2nd Dept 4-8-15

 

Failure to Comply With Terms of Suspended Judgment Justified Termination of Parental Rights

The Third Department determined mother’s failure to comply with the terms of a suspended judgment (permanent neglect) justified termination of her parental rights.  There was evidence the child was thriving in foster care:

It is well settled that a suspended judgment gives a parent who is found to have permanently neglected his or her child “a brief grace period within which to become a fit parent with whom the child can be safely reunited” … . Where the parent’s failure to comply with the terms and conditions of a suspended judgment is established by a preponderance of the evidence, such judgment may be revoked and parental rights may be terminated … . * * *

…”[W]hile respondent’s ‘failure to comply with the terms and conditions of the suspended judgment does not compel the termination of her parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the [child]'”… . Matter of Cody D. (Brittiany F.), 2015 NY Slip Op 02811, 3rd Dept 4-2-15

 

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Father, Who Had Not Been Informed of the Birth of His Child Until After the Child Was Adopted, Was Properly Awarded Custody of the Child

The Third Department affirmed Family Court’s rulings that: the father’s consent to the adoption of his child was required; the father had preserved his right to contest the adoption of his child; and custody of the child is awarded to the father.  Mother put the child up for adoption and the child was adopted before mother informed father she had given birth to his child.  The Third Department heard the appeal despite problems with the notice of appeal and the absence of the Family Court hearing transcript. No one contested the factual findings made by Family Court:

“The father of a child born out-of-wedlock is entitled to full protection of his relationship with the child, including the right to deny consent to an adoption at birth by strangers, only if he ‘assert[s] his interest promptly . . . [and] manifest[s] his ability and willingness to assume custody of the child'” … . Evaluation of the father’s conduct includes, among other things, factors such as “his public acknowledgment of paternity, payment of pregnancy and birth expenses, steps taken to establish legal responsibility for the child, and other factors evincing a commitment to the child” … . Family Court’s many factual findings included that: the father had paid up to 90% of the household expenses when the mother resided with him; the mother was not visibly pregnant while living with him; the mother did not know she was pregnant until she had moved to New York City; FIA [the adoption agency] made no reasonable effort to notify the father; the father was first notified about the pregnancy and child on May 6, 2014; he was unable to contribute to pregnancy expenses through no fault of his own because he had no knowledge thereof; the mother was urged by FIA to decline to identify the father of her child; and, once the father became aware of the child, he filed a paternity petition within about 10 weeks and then a custody petition and he did so despite difficult logistics regarding filing (he lived in South Carolina, the child had been born in New York City, the adoption was pending in Albany County), as well as a lack of legal representation by counsel. The father submitted an affidavit stating that, after learning of some uncovered costs of the birth, he was making arrangements to pay those costs. He had a job and residence, and was able to take immediate custody of the child. In light of the uncontested facts found by Family Court, as well as the other relevant proof in the record, we are unpersuaded that Family Court erred in determining that the father adequately preserved his right to contest the adoption of his child … . Matter of Isabella TT. (Dalton C.), 2015 NY Slip Op 02838, 3rd Dept 4-2-15

 

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Mother Was Not Afforded a Full Hearing in a Custody-Modification Proceeding

The Third Department determined Family Court erred by not affording mother the opportunity to fully cross-examine father or present her own proof in a custody-modification proceeding:

It is well settled “that modification of a Family Ct Act article 6 custody order requires a full and comprehensive hearing at which a parent is to be afforded a full and fair opportunity to be heard” … . Family Court plainly deprived the mother of such a hearing by preventing her from fully cross-examining the father or submitting her own proof before imposing a custody arrangement to which she had not consented … . Matter of Richardson v Massey, 2015 NY Slip Op 02817, 3rd Dept 4-2-15

 

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