You are here: / Family Law

Domestic Relations Order Must Conform to Stipulation of Settlement

The Second Department noted that a domestic relations order must conform to any relevant stipulation.  If it does not conform, it must be amended to conform:

“Where a [domestic relations order]; is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the [domestic relations order]; to accurately reflect the provisions of the stipulation pertaining to the pension benefits” … . “A proper [domestic relations order]; obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment”… . Mondshein v Mondshein, 2014 NY Slip Op 03806, 2nd Dept 5-28-14

 

Father’s New York Custody Petition Not Preempted by Dominican Republic Court’s Denial of Father’s Application for Return of the Child

The Second Department determined Family Court should not have dismissed father’s petition for custody, despite a Dominican Republic court-ruling denying father’s application for return of the child. The application for return of the child was made pursuant to the Convention on the Civil Aspects of International Child Abduction (Convention). The father’s petition for custody in New York was deemed proper under the Uniform Child Custody Jurisdiction and Enforcement Act.  The New York custody petition was not preempted by the court ruling in the Dominican Republic:

The Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court’s jurisdiction in international child custody matters (see Domestic Relations Law § 75-d). Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this Sate has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (see Domestic Relations Law § 76[a]). “Home state” is defined [*2]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 (see Domestic Relations Law § 75-a[7]). While “state” is defined as a “state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States” (Domestic Relations Law 75-a[15]), pursuant to Domestic Relations Law § 75-d, a “court of this state shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75-d[1]).

The Convention, “done at The Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights” (42 USC § 11601[a];[4]). “The Convention seeks to secure the prompt return of children wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States” … . The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply … . Return is not required, for example, if the abducting parent can establish that there is a grave risk that the child’s return would expose him or her “to physical or psychological harm or otherwise place the child in an intolerable situation” … . A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence … .

Here, it is undisputed that the United States was the child’s country of habitual residence, and that, at the time the petition was filed, New York was the child’s “home state.” Thus, the Family Court had jurisdiction to determine the father’s petition for custody (see Domestic Relations Law § 76[a]). Moreover, the denial, by the court in the Dominican Republic, of the father’s application for a return of the child pursuant to the Convention, did not preempt his custody proceeding … . Accordingly, the Family Court erred in dismissing the father’s petition. Matter of Katz v Katz, 2014 NY Slip Op 03841, 2nd Dept 5-28-14

 

Derivative Neglect Finding Reversed—Operative Principles Explained

The Third Department reversed Family Court, finding the evidence insufficient to support an allegation of derivative neglect. The theory below was that the alleged abuse of one child, Dominick, was serious enough to warrant a finding of derivative neglect with respect to a child (Brad) who had not been born at the time of the alleged neglect of Dominick.  In the course of the decision, the court explained the operative principles:

Pursuant to Family Ct Act § 1046 (a) (i), “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent.” However, “[e]vidence of neglect of one child typically may not serve as the sole basis for a finding of neglect [of another child, unless] the nature of the direct [neglect], notably its duration [and] the circumstances surrounding its commission[,] . . . evidence[s] fundamental flaws in the respondent’s understanding of the duties of parenthood” … . — flaws that are “so profound as to place any child in his or her care at substantial risk of harm” … . Contrary to the father’s assertion, petitioner’s failure to commence a direct neglect proceeding against him with respect to Dominick does not bar petitioner from maintaining this derivative neglect proceeding against him with respect to Brad. Similarly, the fact that Brad had yet to even be conceived — much less born — at the time of the home invasion or the search of the father’s residence is not dispositive, as the relevant inquiry is whether the evidence of the direct neglect of one child, i.e., Dominick, “is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … . Matter of Brad I (Tiana K), 2014 NY Slip Op 03555, 3rd Dept 5-15-14

 

, ,

Civil Contempt Finding Appropriate—Defendant Failed to Comply With Order to Pay Attorney’s Fees

The Second Department explained the criteria for civil contempt.  The order which was not complied with here required defendant to pay attorney’s fees in a divorce proceeding:

To prevail on a motion to punish for civil contempt, the movant must establish (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” … . The movant has the burden of proving contempt by clear and convincing evidence … . Here, where it is undisputed that the defendant did not comply with the clear mandate of the court’s order …, the plaintiff met his burden on the motion … . Moreover, under the circumstances of this case, less drastic enforcement measures than seeking to hold the defendant in contempt would have been ineffectual … . Hayes v Barroga-Hayes, 2014 NY Slip Op 03488, 2nd Dept 5-14-14

 

,

Court Should Have Granted an Adjournment in Contemplation of Dismissal In a Juvenile Delinquency Proceeding

The First Department, over a dissent, determined that an adjournment in contemplation of dismissal (ACD) was the least restrictive dispositional alternative in a juvenile delinquency proceeding:

An adjournment in contemplation of dismissal would have been the least restrictive dispositional alternative consistent with appellant’s needs and the community’s need for protection … . This was appellant’s first offense. She admitted the allegations of the petition but asserted, as did her mother, that the incident resulted from her having been bullied by the complainant with no corrective action taken by appellant’s school. While appellant had truancy issues at school, at the time of the disposition she was employed, was being treated for depression, and was generally making progress. Based on all these factors, there is no reason to believe that appellant needed any supervision beyond that which could have been provided under an ACD. It should also be noted that under the terms of an ACD, the court could have required the Probation Department to monitor appellant, and her observance of a curfew and other requirements. Matter of Clarissa V, 2014 NY Slip Op 03431, 5-13-14

 

,

Juvenile Delinquency Adjudication Appropriate to Ensure Residential Supervision

The First Department determined Family Court had properly adjudicated the appellant a juvenile delinquent, despite the relatively minor offense, because the appellant was in need of residential supervision:

The court properly exercised its discretion in adjudicating appellant a juvenile delinquent. Although the underlying offense was not serious, appellant was in need of a residential, nonsecure placement under the Close to Home Initiative program. The court properly declined to adjudicate appellant a person in need of supervision … , particularly since appellant had already demonstrated, following a prior proceeding brought by her mother, that such a disposition would not control appellant’s behavior. Accordingly, a juvenile delinquency adjudication was necessary to ensure appellant’s compliance with residential treatment. “[T]he irony is presented that while the court may direct the PINS youth not to abscond, the statutory authority constraining the court essentially precludes an effective remedy should the youth abscond” … . Matter of Amari D, 2014 NY Slip Op 03452, 1st Dept 5-13-14

 

,

Facts Did Not Support Family Court’s Dismissal of a Petition to Terminate Parental Rights of Both Parents—Permanent Neglect Finding Was Warranted by the Facts

The First Department reversed Family Court, based on the appellate division’s own findings of fact, and found that neither parent had made realistic plans for the child’s future, constituting clear and convincing evidence of permanent neglect:

There is no dispute that the agency has met the threshold requirement in a permanent neglect proceeding of showing it discharged its statutory obligation to exert diligent efforts to encourage and strengthen the parental relationships (see Social Services Law § 384-b[7][a]…). However, contrary to the findings by Family Court, there is clear and convincing evidence, the standard of proof required …, that despite the agency’s diligence, neither parent has, “for a period of either at least one year or fifteen out of the most recent twenty-two months following the date [the] child came into the care of an authorized agency,” shown sufficient planning for the child’s future, as described in the Social Services Law, to warrant continuing parental rights (see Social Services Law § 384-b[7][a]…).

Planning for the future of the child under the Social Services Law requires that the parent take “necessary [steps] to provide an adequate, stable home and parental care for the child within a period of time which is reasonable”; at the very least, the parent must take steps to “correct the conditions” that resulted in the initial removal of the child from the home … . Matter of Selvin Adoph F v Thelma Lynn F, 2014 NY Slip Op 03432, 1st Dept 5-13-14

 

,

Family Court Should Not Have Denied Father’s Request for Son’s Mental Health Records Without an In Camera Review

The First Department determined Family Court should not have denied father’s request for his son’s mental health records without first conducting and in camera review of the records and applying a balancing test required by Family Court Act section 1038 (d). There was no evidence of the alleged abuse except the child’s testimony, so the child’s credibility was the central issue:

Respondent father moved to subpoena the eldest child’s (the child) mental health treatment records. The Family Court, without conducting an in camera review of the requested records, denied the motion. Pursuant to Family Court Act (FCA) § 1038(d), the court must conduct a balancing test … . The statute requires that the court weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery.” Here, the Family Court should have reviewed the child’s mental health records in camera to determine if the records are relevant to the central issue of the child’s credibility before making its disclosure ruling.

The record contains no physical evidence of the alleged abuse and the case against respondent relies almost entirely on the credibility of the child, placing a great amount of weight on the child’s testimony… . Matter of Dean T Jr (Dean T Sr), 2014 NY Slip Op 03430, 1st Dept 5-13-14

 

, ,

Antenuptial Agreement Was a Valid Contract Which Controlled Interpretation of Trust Documents

The Third Department applied general principles of contract-interpretation to an antenuptial agreement and trust documents to determine objections to property distribution raised by the surviving wife:

Although the [trust document] makes no explicit mention of the antenuptial agreement, the [trust document] fulfilled decedent’s obligation under that agreement by explicitly creating a trust to benefit [the wife] during her lifetime in an amount in excess of that required by the antenuptial agreement. Further, the [trust document] provides that the trust to benefit [the wife] be funded with assets that “qualify for the marital deduction,” which is consistent with the intentions of the parties as explicitly set forth in the antenuptial agreement. The structure of the [trust document] creates an estate plan that is inconsistent with [the wife’s] claim. The plain language provides for a trust to benefit [the wife] that meets the specific minimum requirements set out in the antenuptial agreement, and the [trust document] conforms to the parties’ intentions regarding tax deductibility expressed in the agreement. Considering this evidence, Surrogate’s Court properly determined that there is no issue of material fact on [the wife’s] claim, because decedent intended to fulfill his obligation under the antenuptial agreement through the [trust] …, and that trust was funded in an amount greater than required by the antenuptial agreement … . Matter of Rich, 2014 NY Slip Op 02982, 3rd Dept 5-1-14

 

,

Aunt Met Her Burden of Establishing Extraordinary Circumstances Overcoming Mother’s Superior Right to Custody of Children/Appellate Division Has Authority to Make Those Findings Where Family Court Failed to Do So

After noting that Family Court failed to address whether petitioner, a maternal aunt, had established extraordinary circumstances overcoming the mother’s superior right to custody, the Third Department exercised its power to make the finding that petitioner had met her burden:

Notwithstanding Family Court’s failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed … . Based upon that review, we conclude that petitioner met her burden of establishing extraordinary circumstances. Petitioner testified that the older child had lived with her for approximately four years. The younger child had lived with petitioner for about one year, returned to the mother’s home and then resumed living with petitioner. According to petitioner, and as partially corroborated by the mother, the mother’s health issues significantly limited her ability to care for the children. The evidence at trial established that the mother, who has substantial pulmonary issues and requires the aid of oxygen, excessively and inappropriately depended upon the children to assist her with personal and health needs, as well as housekeeping duties. The mother even required the younger child to sleep near her because she was afraid she would stop breathing while sleeping. Additionally, the mother’s health issues hindered her ability to supervise the younger child, who had behavior issues and was getting into trouble at school while she was living with the mother. During various hospitalizations, the mother left the younger child with neighbors and/or relatives, some of whom were of questionable reliability.

It is abundantly clear that the mother was unable to both provide the younger child with a structured environment and to properly care for her; instead, the mother relied upon the child to take care of her. Further, when the younger child was residing with petitioner, the mother consistently pressured her to return to her home — claiming, among other thing, that she needed her home because she was dying — which was upsetting to the child. Multiple witnesses also testified to the unsanitary living conditions in the mother’s trailer, including several occasions when it was flea infested. When the younger child came to live with petitioner, her clothing was ill-fitting and she had significant untreated dental issues. Finally, inasmuch as the older child had been living with petitioner for many years, placing the younger child in petitioner’s care allowed the siblings to reside together. Matter of Roth v Messina, 2014 NY Slip Op 02637, 3rd Dept 4-17-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy