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In Order for Family Court to Review a Support Magistrate’s Order, Specific Objections Must Have Been Made to Preserve the Issues Raised in Family Court

The Third Department determined that Family Court’s order must be vacated because it was based upon issues not raised in objections to the Support Magistrate’s order.  Because Family Court acts as an appellate court with respect to orders by the Support Magistrate, any errors must be preserved by objections:

…”[A]n order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439 (e) is tantamount to appellate review and requires specific objections for issues to be preserved” … .  The issues noted by the court were not included in the father’s objections …. Matter of Porter v D’Amano. 516522, 3rd Dept 1-9-14

 

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In a Neglect Proceeding, the Review of Sealed Documents by the Evaluating Psychologist Required that His Testimony Be Entirely Discounted

In a neglect proceeding, the Third Department, in the full-fledged opinion by Justice Spain noted the evaluating psychologist’s testimony must be entirely discounted because the psychologist reviewed sealed documents to which he should not have had access:

…Steven Silverman, [the evaluating psychologist] reviewed not only the subject reports, but also many of the other juvenile delinquency records that were properly – and undeniably – sealed under Family Ct Act § 375.1.  Although it is unclear how Silverman came into possession of the sealed materials, his review of such documents plainly was error – as was his review of the subject reports, the latter of which Family Court and counsel expressly agreed would not be made available to him.  As Silverman clearly reviewed a multitude of documents to which he should not have had access, and as there is no meaningful way to gauge the impact of those materials upon the opinion he ultimately rendered, we agree with respondent that Silverman’s testimony should be discounted in its entirety.  Matter of Dashawn Q…, 2013 NY Slip Op 08565 [114 AD3d 149], 3rd Dept 12-26-13

 

 

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Family Court Erred in Allowing Court Appointed Special Advocates Access to Confidential Records and Proceedings

The Third Department, in a full-fledged opinion by Justice Spain, determined Family Court had improperly allowed Court Appointed Special Advocates (CASA) to have access to confidential records and proceedings concerning children who were in foster care.  The court first noted that CASA was not a party and therefore did not have the right or capacity to seek relief from the court.  After finding that the petitioner (Social Services) did not have the power to direct the foster parents not to speak with CASA volunteers, the Third Department held that Family Court had erred in allowing CASA access to certain confidential records and proceedings:

With regard to Family Court’s unqualified directive that a CASA volunteer be permitted to attend all family service plan review meetings, and requiring petitioner to provide notice thereof, we find that the court exceeded its authority.  Service plan reviews, which are aimed at ultimately achieving permanent discharge of children in foster care, require petitioner “to review progress made through implementation of the previous service plan, identify issues of concern and suggest modifications that impact on and inform the development of a new service plan for the case” (18 NYCRR 430.12 [c] [2] [i]; see 18 NYCRR 428.9).  The reviews will often entail in-depth sharing, discussion and consideration of confidential information, such as medical and mental health information of the children or parents and reports of abuse and maltreatment… . * * *

Family Court lacked the authority to direct petitioner to “provide [the] CASA [volunteer] with the names of individuals and agencies providing mental health services to the children” subject only to the “providers, using their own professional judgment,” determining “what if any information regarding the children may be shared with [the] CASA [volunteer].”  Mental Hygiene Law § 33.13 (c) prohibits the release of mental health records contained in foster care records except in limited circumstances, including “pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13 [c] [1]). The court here expressly declined to make such a finding, and petitioner is statutorily bound to keep such information confidential… .  Matter of Evan E…, 516055, 3rd Dept 12-26-13

 

Petitioner Met Burden of Establishing His Acknowledgment of Paternity Was Signed by Reason of a Mistake of Fact/Petitioner Not Estopped from Denying Paternity

The Second Department, over a dissent, determined petitioner met his burden of proof in establishing his acknowledgment of paternity (AOP) was signed by reason of mistake of fact and sent the matter back for a determination of paternity:

Here, the petitioner testified that he signed the AOP because, during the relevant time period, he and the respondent were having sexual relations and the respondent represented that he was the biological father. He also testified that it was only after he executed the AOP that he learned from coworkers that another man may be the child’s actual biological father, causing him to question his paternity. The petitioner’s testimony was sufficient pursuant to Family Court Act § 516-a(b)(ii) to establish a material mistake of fact … .

Further, in light of the Family Court’s finding that the petitioner did not meet his initial burden of proof, no hearing was held on the matter of the child’s best interests. However, since it is undisputed that the parties were never married to each other and did not live together at any time during the child’s life, the petitioner had only visited with the child approximately five or six times before visitation ceased altogether when the child was less than eight months old, and the respondent testified that the petitioner had no relationship with the child, it would not be appropriate to apply the doctrine of equitable estoppel to preclude the ordering of genetic marker or DNA tests for determination of the child’s paternity. Under these circumstances, there is no evidence that the child “would suffer irreparable loss of status, destruction of her family image, or other harm to her physical or emotional well-being if this proceeding were permitted to go forward”… . Matter of Sidney W v Chanta J, 2013 NY Slip Op 08645, 2nd Dept 12-26-13

 

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Family Court Has No Power to Add to Terms of Remittitur

The Second Department determined Family Court had failed to comply with the terms of its remittitur.  On appeal, the Second Department previously determined that the mother’s commitment to jail for failure to comply with a court order should be reduced from six months to 30 days.  Family Court then committed the mother to 30 days but added she was not to receive allowances for good behavior.  Because the “no allowances for good behavior” was not part of the appellate remittitur, that portion of Family Court’s order was invalid:

Upon a remittitur, a court is ” without power to do anything except to obey the … mandate of the higher court'” … . Here, the Family Court erred in failing to adhere to the terms of this Court’s remittitur by including in the amended order of commitment a provision directing that the mother would not receive time allowances for good behavior. We note that, although the mother is eligible for such time allowances (see Correction Law § 804-a[1]… ), the determination as to whether they should be granted is to be made by the person in charge of the institution where she is committed (see Correction Law § 804-a[3]… . Accordingly, we remit the matter to the Family Court, Nassau County, for the issuance of a second amended order providing that the mother is to be committed to the Nassau County Correctional Facility for a term of 30 days “unless sooner discharged according to law.”  Matter of Cunha v Urias, 2013 NY Slip Op 08624, 2nd Dept 12-26-13

 

 

Family Court Did Not Adequately Consider the Factors Relevant to Mother’s Request for Unsupervised Visitation/Determination of Visitation Improperly Delegated to Father

The Third Department determined Family Court did not adequately consider mother’s request for unsupervised visitation with her children and improperly delegated the court’s authority to determine visitation to the father:

…Both the children and the noncustodial parent have a right to meaningful visitation … .  “[I]n providing for visitation that will be meaningful, the frequency, regularity and quality of the visits must be considered [and] [e]xpanded visitation is generally favorable absent proof that such visitation is inimical to a child’s welfare” … .  While Family Court’s best interests determination in visitation matters is ordinarily accorded great deference …, the court’s consideration of numerous important factors is not apparent here.  These include the children’s ages, needs and wishes; the mother’s progress with substance abuse treatment; the availability of adding supervised time or of additional supervisors of visitation, including family members; the passage of a great length of time with only highly restricted and limited supervised visits (since May 2011, at least); the fact that the visitation facility did not allow the children’s siblings (i.e., the mother’s infant born in June 2011 and adult daughter) or maternal family to attend; the father allowed only two unsupervised visits; the possibility of attaching conditions to unsupervised visitation; and the fact that the mother had been assessed as not posing a risk to herself or others in her treatment.  The foregoing factors, among others, represent a change in circumstances requiring, at the least, a reassessment of the existing visitation restrictions; … .

Moreover, Family Court erred in “delegat[ing] its authority to determine visitation to . . . a parent”… . Matter of Fish v Fish, 514662, 3rd Dept 12-19-13

 

 

Father’s Incarceration Justified a Modification of Custody/Sole Custody Awarded to Mother

The Third Department upheld Family Court’s finding father’s incarceration justified a modification of custody and the grant of sole custody to the mother:

Initially, we note the absence of anything in the record to indicate that, but for the father’s incarceration, joint custody would not have continued to be appropriate.  Nonetheless, the father’s incarceration presented logistical restrictions on the parties’ ability to effectively and efficiently communicate with each other, rendered shared physical custody impossible and generally created limitations on the father’s ability to fulfill his obligations as a custodial parent … .  In this regard, the mother testified that, while the father was incarcerated, she made all of the decisions regarding the child and the father did not initiate any contact with her about the child.  Notwithstanding the father’s testimony that he had liberal access to a telephone and email, the mother was unaware that she could call him and testified that it normally took him at least one day to respond to her emails.

Additionally, the father acknowledged that the mother could not reach him while he was at work five days a week for several hours each day and that he had, at times, exhausted his monthly allotted telephone time.  Further, the father was unable to identify the child’s medical provider or teacher, which reflected his limited involvement in the child’s daily life.  After considering the appropriate factors relevant to custody determinations … and according deference to Family Court’s ability to observe the witnesses and assess their credibility …, we find a sound and substantial basis for that court’s determination that an award of sole physical and legal custody to the mother was in the child’s best interests… . Matter of Breitenstein v Stone, 514316, 3rd Dept 12-19-13

 

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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was 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” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

Court Erred In Applying the “15% Increase in Income” Criteria for Support Modification to an Order Which Predated the 2010 Effective Date of the “15% Increase” Statutory Amendment/the 2008 Order Was Incorporated But Not Merged Into a 2012 Judgment

The Third Department determined Family Court erred in modifying child support based upon the father’s income having increased by 15%.  The 2008 child support order at issue pre-dated the 2010 effective date of the “15% increase” statutory amendment and the order was not merged with the 2012 judgment of divorce:

Family Court erred in finding that child support should be modified based on a 15% change in the father’s income.  Family Ct Act § 451 (2) (b) (ii) allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income has changed by 15% or more since the order was entered or modified.  When that provision was added to the statute through a 2010 amendment, however, the Legislature provided that “if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments [to section 451] shall only apply if the incorporated agreement or stipulation was executed on or after [October 13, 2010]” (L 2010, ch 182, § 13).  The 2008 order was based upon the parties’ agreement, incorporated into the 2012 judgment of divorce and entered prior to the effective date of the statute’s 2010 amendments.  Accordingly, the amendments did not apply to a modification of this order, and Family Court should not have relied on the father’s 15% increase in income as the basis for modification.

For agreements executed prior to the effective date of the amendments to Family Ct Act § 451, the standard for modifying an order based on the parties’ agreement is whether the petitioning party has demonstrated “an unanticipated and unreasonable change in circumstances” or that the children’s needs are not being met … .  The mother’s generalized testimony that the costs of food, health care and clothing for the children had increased, as had the father’s income, was insufficient to meet her burden under that standard … .  Matter of Zibell v Zibell, 516324, 3rd Dept 12-12-13

 

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Service Upon Opposing Party of Objections to Support Magistrate’s Order Is a Condition Precedent to Consideration of the Objections and Appellate Review

Failure to properly serve opposing party with objections to Support Magistrate’s order precludes a consideration of the merits of the objections and appellate review:

Family Court Act § 439 provides, in pertinent part, that “[a] party filing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal.” Here, given the mother’s evidence that she did not live at the address to which the father had mailed the objections, coupled with the father’s conceded failure to mail the objections to the correct address, and where “no rebuttal to the objections had been filed by the mother” … ,”the father failed to fulfill a condition precedent to filing timely written objections to the Support Magistrate’s order and, thus, failed to exhaust the Family Court procedure for review of [his] objections” … . Consequently, “the Family Court lacked jurisdiction to consider the merits of the objections, and the father waived his right to appellate review” … . Matter of Hamilton v Hamilton, 2013 NY Slip Op 08246, 2nd Dept 12-11-13

 

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